Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698943147281.pdf (South Africa)
Ref lections n the Bi of Rights THEME COMMITTEE 4 Contributors: President Jacob Zuma, Deputy President Cyril Ramaphosa, Louise Asmal, Sheila Camerer, Halton Cheadle, Thoko Didiza, Hassen Ebrahim, Willie Hofmeyr, Philip Knight, Sandra Liebenberg, Brigitt e Mabandla, Mavivi Myakayaka-Manzini, Baleka Mbete, Kenneth Meshoe, Membathisi Mphumzi Shepherd Mdladlana, Albert Mncwango, Corné Mulder, Blade Nzimande, Naledi Pandor, Ray Radue, Enver Surty and Leon Wessels.
ISBN 978-1-4850-0347-2 © Parliament of the Republic of South Africa 2016 Tel: (021) 403-2911 Fax: (021) 403-8219 E-mail: info@parliament.gov.za Postal Address: PO Box 15, Cape Town, 8000 Physical Address: Parliament Street, Cape Town www.facebook.com/parliamentofrsa www.twi� er.com/ParliamentofRSA Website: www.parliament.gov.za Printed and bound by Parliamentary Documenta� on Technical Services (DTS) First print 2016 © All rights reserved.
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ii Reﬂ ections on the Bill of Rights – Theme Committee 4 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION iii CONTENTS Abbrevia� ons and acronyms ................................................ 1 Message from the Presiding Oﬃ cers of Parliament ............. 3 Foreword – President Jacob Zuma ........................................... 4 Background and acknowledgements – Enver Surty ............... 6 Birth cer� ﬁ cate of our na� on –Deputy President Cyril Ramaphosa ............................................................................ 9 The genesis – Louise Asmal, with references to the book by Kader Asmal ........................................................................... 14 Architecture and public par� cipa� on – Hassen Ebrahim ........ 16 There is no ﬁ nish line – Leon Wessels ..................................... 23 Human dignity as the pre-eminent value – Enver Surty ......... 28 Swinging the pendulum – Brigitt e Mabandla .......................... 36 1.
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8.

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Toiling for equality – Ray Radue ............................................ 40 11.

Women in the Cons� tu� on – Mavivi Myakayaka-Manzini ...... 43 12.

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Party and private perspec� ves – Sheila Camerer .................... 47 Non-violence, tolerance and peaceful protest – Albert Mncwango ............................................................................. 51 Shaping the future through our rights – Naledi Pandor ......... 55 Freedom of expression – with or without boundaries – Enver Surty .......................................................................... 58 A new labour dispensa� on – Halton Cheadle ......................... 63 Property rights recreated – Baleka Mbete ............................. 68 Embedding socio-economic rights – Sandra Liebenberg ......... 72 Conten� ous and complex – educa� on is a right – Blade Emmanuel Nzimande ................................................. 78 s t n e t n o C TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 iii iii 20.
21.

22.

23.

24.

25.
Cultural, linguis� c and religious rights for all – Corné Mulder ...................................................................... 83 From outlaw to sheriﬀ – Willie Hofmeyr ................................. 87 Diﬀ erence, diversity and unity – Membathisi Mphumzi Shepherd Mdladlana ....................................................................... 93 An abridged excerpt from Patriots & parasites: South Africa and the struggle to evade history – Dene Smuts .......................................................................... 96 Rhetoric is the argument – Philip Knight ................................ 103 Human rights in South Africa – Kenneth Meshoe .................... 109 iv Reﬂ ections on the Bill of Rights – Theme Committee 4 1 ABBREVIATIONS AND ACRONYMS ACDP ADEP ANC BPC CA CEACR CODESA COSATU CP CRL DA DNDPP DP FF FNPPA HRC ICCPR ICESCR IDASA IFP ILO MP NA NAT NCOP NEC NECC NEPA NEUSA NGOs NP NPA NSFAS NUM NWC PAC PAIA PAJA PASA PFP RAU SACP SADTU SACHED SAIRR SALC SASA SASO the Applica� on of Conven� ons and African Chris� an Democra� c Party Advanced Diploma in Economic Policy African Na� onal Congress Black People’s Conven� on Cons� tu� onal Assembly Commi� ee of Experts on Recommenda� ons Conven� on for a Democra� c South Africa Congress of South African Trade Unions Conserva� ve Party Commission for the Promo� on and Protec� on of the Rights of Cultural, Religious and Linguis� c Communi� es (‟the CRL Rights Commission”) Democra� c Alliance Deputy Na� onal Director of Public Prosecu� ons Democra� c Party Freedom Front Financial Management of Parliament and Provincial Legislature Act Human Rights Commission Interna� onal Covenant on Civil and Poli� cal Rights Interna� onal Covenant on Economic, Social and Cultural Rights Ins� tute for Democracy in South Africa Inkatha Freedom Party Interna� onal Labour Organisa� on Member of Parliament Na� onal Assembly Member of Na� onal Party Na� onal Council of Provinces Na� onal Execu� ve Commi� ee Na� onal Educa� on Co-ordina� ng Commi� ee Na� onal
 Educa� on Policy Act Na� onal Educa� on Union of South Africa Non-Governmental Organisa� ons Na� onal Party Na� onal Prosecu� ng Authority Na� onal Student Financial Aid Scheme Na� onal Union for Mineworkers Na� onal Working Commi� ee Pan Africanist Congress Promo� on of Access to Informa� on Act Promo� on of Administra� ve Jus� ce Act Post-Apartheid South Africa Progressive Federal Party Rand Afrikaans University South African Communist Party South African Democra� c Teachers Union South African Council for Higher Educa� on South African Ins� tute of Race Rela� ons South African Law Commission South African Schools Act South African Student Organisa� on Reﬂ ections on the Bill of Rights – Theme Committee 4 11 SERAJ SGBs TRC UCT UDF UDHR UDUSA UN UNISA USSR UWC WTC Socio-Economic Rights and Administra� ve Jus� ce Research Project School Governing Bodies Truth and Reconcilia� on Commission University of Cape Town United Democra� c Front Universal Declara� on of Human Rights Union of Democra� c Universi� es Staﬀ Associa� ons of South Africa United Na� ons University of South Africa Union of Soviet Socialist Republics University of the Western Cape World Trade Centre 2 Reﬂ ections on the Bill of Rights – Theme Committee 4 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 3 1 MESSAGE FROM THE PRESIDING OFFICERS OF PARLIAMENT On 10 December 1996 the ﬁ rst democra� cally elected President of the Republic of South Africa, Nelson Rolihlahla Mandela, signed the ﬁ nal Cons� tu� on into law.
This was, and con� nues to be, the Supreme Law of the land, and any law or ac� on that is inconsistent with the Cons� tu� on is deemed to be uncons� tu� onal and unlawful.

The 1996 Cons� tu� on is the product of the hard work of women and men in the Cons� tu� onal Assembly, most of whom had seen Parliament for the ﬁ rst � me in 1994, and many of whom – especially from the ANC – had absolutely no experience in or exposure to any form of governance prior to 1994.
The Bill of Rights lies at the heart of the new, open society we sought to create.

In the context of Parliament’s public par� cipa� on programme, it a� racted by far the greatest number of submissions and necessitated the most extensive consulta� on with communi� es.

Theme commi� ees, involving members from both Houses of Parliament, had to be set up.

New rules for each House and joint rules for both Houses had to be developed in a form that would be consistent with the Bill of Rights.
In addi� on, Por� olio Commi� ees and Select Commi� ees had to be formed.
Oppressive legisla� on had to be repealed and new legisla� on, including that giving eﬀ ect to the establishment of the South African Truth and Reconcilia� on Commission (TRC) and the Human Rights Commission, as well as powers and privileges and educa� on legisla� on and the ba� ery of laws necessary for the crea� on of new ins� tu� ons – for example for the establishment of the Cons� tu� onal Court and other Chapter 9 ins� tu� ons – had to be promulgated.
MPs had their hands full, but notwithstanding they spent long hours nego� a� ng, persuading each other and deba� ng the content of the Bill of Rights and the Cons� tu� on.

Such extraordinary commitment is a rare and unusual phenomenon.

Going home in the early hours only to snatch a few hours’ sleep became the norm.
When we were made aware of the compila� on of this book, which provides diﬀ erent individual, party-poli� cal and technical insights into the dra� ing of the Bill of Rights, we were immediately convinced that it should by rights belong to Parliament, where commi� ees and caucuses met, where debates took place and where decisions were taken.
It is also consistent with other ini� a� ves, which we will announce shortly, regarding our eﬀ orts to promote awareness of the Bill of Rights and the Cons� tu� on as a whole on the occasion of its 20th anniversary.

The Bill of Rights and the Cons� tu� on protect the powers and privileges of not only MPs and ci� zens but all who live in South Africa.

This book seeks to capture the spirit under which we adopted and passed into law the Bill of Rights and other chapters of the Cons� tu� on.
The authors have wri� en their contribu� ons as ac� ve par� cipants of our incredible journey and not as mere commentators.

We trust that you will enjoy the behind-the-scenes look at this interes� ng and complicated process, and that it will remind you of the value of this wonderful gi� .

We were only instruments; our people were the spirit guiding us and shaping the content of our Cons� tu� on and the Bill of Rights.
TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 3 3 3 2 FOREWORD President Jacob Gedleyihlekisa Zuma On 10 December 2016 we celebrate the 20th anniversary of the promulga� on of the Cons� tu� on of the Republic of South Africa, 1996, as the supreme law of our land.
Enshrined in the Cons� tu� on, in its second Chapter, is the Bill of Rights, which is widely regarded by many worldwide as among the most progressive bills on fundamental rights.

The Bill of Rights is described in its Preamble as the cornerstone of our democracy.

It is underpinned by the values of human dignity, equality and freedom.
The choice of these values was conscious and deliberate, given our divided past when the vast majority of our people, the blacks in general, and Africans in par� cular, had their dignity violated in mul� ple ways on a daily basis.

The value of equality reﬂ ects our colonial and apartheid past, which created privilege for the whites and depriva� on and denial for the vast majority of blacks.
Freedom was suppressed and civil and poli� cal liber� es, including the right to vote, the freedom from ignorance, want, poverty and oppression, were taken away from blacks.

To deal comprehensively with the diﬀ erent focus areas in the formula� on of the new Cons� tu� on, six individually themed parliamentary commi� ees were established to do work in the diﬀ erent focus areas of the ﬁ nal Cons� tu� on.
This book encapsulates the reﬂ ec� ons of nego� ators from diﬀ erent poli� cal par� es, as members of Theme Commi� ee 4, which was assigned the task of ﬁ nalising Chapter 2 on Fundamental Rights.

This forms the Bill of Rights as we know it today and includes the contribu� ons of some of its technical experts who were responsible for the ﬁ nal product.
The book seeks to explore the thinking behind some of the considera� ons made by those involved in the process and gives us an insight into some of the very interes� ng aspects in the Bill of Rights through their lens.

It is a � mely publica� on, as its launch takes place on the cusp of the 20th anniversary of the Bill of Rights.
Informed by its content, our judiciary has expressed itself on a range of civil, poli� cal, social and economic rights, including the rights to freedom of expression, educa� on, housing, healthcare and religion, and serves as a guide for execu� ve and private ac� ons.
d r o w e r o F As can be recalled, the 1996 Cons� tu� on is the culmina� on of a process which has its genesis in the Africans’ Claims documents, Freedom Charter, United Na� on Declara� on of Human Rights, the Covenants of Social, Poli� cal, Civil and Economic Rights, the African Charter on Human and People’s Rights and other foreign and interna� onal instruments.
The role of leaders of the African Na� onal Congress (ANC) as well as other poli� cal par� es, some who sadly no longer exist today, sister organisa� ons, and the people of South Africa as a whole needs to be acknowledged, including those involved in the Harare Declara� on and CODESA I and II.

The Interim Cons� tu� on, with its 34 principles, was the founda� on for the 1996 Cons� tu� on.
It is in this context that the names of many luminaries, such as Kader Asmal, Fink Haysom, Halton Cheadle, Albie Sachs, Arthur Chaskalson, Brigi� e Mabandla, and many others, come to mind.
444 Reﬂ ections on the Bill of Rights – Theme Committee 4 This book deals with the period 1994 to 1996, in terms of which the Chapters in This book deals with the period 1994 to 1996, in terms of which the Chapters in the Cons� tu� on had to comport to 34 cons� tu� onal principles and had to be cer� ﬁ ed by the Cons� tu� onal Court, recognising the independence and authority of the judiciary.
Our sincere gra� tude therefore must go to all individuals, organisa� ons and par� es for contribu� ng to the crea� on of the Cons� tu� on of the Republic of South Africa, from which we con� nue to derive great pride as South Africans.
Mr Jacob Gedleyihlekisa Zuma President of the Republic of South Africa Reﬂ ections on the Bill of Rights – Theme Committee 4 5 3 BACKGROUND AND ACKNOWLEDGEMENTS Enver Surty Not too long ago at an educa� on summit of the ANC, the Minister of Higher Educa� on and Training, Dr Blade Nzimande, and I were reminiscing and sharing personal insights into perhaps the most important phase of our democracy – the wri� ng of our ﬁ nal Cons� tu� on and the Bill of Rights.
He then challenged me to approach the core members of Theme Commi� ee 4, who had been responsible for Chapter Two of the Cons� tu� on, namely the Bill of Rights, and to invite them to contribute their perspec� ves with a view to compiling them in the form of a book.

I subsequently raised the sugges� on with the Deputy President.

He was excited by the idea and mandated me to proceed.
The challenge, however, was to approach core members of all the poli� cal par� es and request them to contribute vigne� es or stories within only ten days.

This book is the result.

We wish to express our most humble and sincere apprecia� on to each of the contributors from Theme Commi� ee 4’s poli� cal and technical teams.
Their perspec� ves, I know, will give the reader of this book a fascina� ng sense of the course of the nego� a� ons that were held a� er the adop� on of the Interim Cons� tu� on and within the framework of the 34 cons� tu� onal principles.

The Cons� tu� on had to be adopted within two years, and while I have apologised to each contributor for the pressure exerted, their delivering their contribu� ons on � me says a great deal about their ability to work within very � ght � me frames.
A� er the ini� a� ve had been endorsed by the Deputy President, work started in earnest.

When I discussed the ini� a� ve with the Speaker, Baleka Mbete, and the Chairperson of House Commi� ees, Thoko Didiza, they strongly and correctly expressed the view that the book belonged to Parliament, as the Cons� tu� onal Assembly had been made up of both Houses of Parliament.

Furthermore, the punishing mee� ngs and robust debates of the � me had occurred within the hallowed walls of Parliament.
Ms Thandi Modise, Chairperson of the Na� onal Council of Provinces, strongly supported this view.

We acknowledge, with thanks, their willingness to support this ini� a� ve.

In order to begin the process, it was important to have a team of women and men at the ready to assist in guiding this process.
We wish to thank Professor Veronica McKay and her team of editors, Anneke Malan and Ilze Holtzhausen de Beer, as well as the layout designer, Tharina du Preez, who have done a sterling job under impossible circumstances.

We also thank the Secretary of Parliament and his team for their invaluable support.

My Oﬃ ce Manager, Christel de Beer, took on the responsibility of single-handedly coordina� ng and liaising with the intended contributors.
She worked � relessly – and without lamenta� on – to ensure that we did indeed meet the deadline of 7 December 2016, and I have no doubt that we would not have achieved this without her focused commitment.
Reﬂ ec� ng now on the two years during which the Bill of Rights was cra� ed, we are grateful for the leadership provided to Theme Commi� ee 4 by Membathisi Mphumzi Sheperd Mdladlana (who asserted his authority as a long-serving school principal) as Chair and Ray Radue, the calm, conscien� ous and composed reconciler, as alternate Chair.

The inspiring leadership of Naledi Pandor as Deputy Chair of the Commi� ee and Chair of the ANC Study Group was remarkable.
Even though not 666 Reﬂ ections on the Bill of Rights – Theme Committee 4 Hard at work!

Photo: With the permission of Hassen Ebrahim lawyer, she had an extremely good grasp of the law and ensured, with Membathisi Mphumzi Shepherd Mdladlana, that all the ANC submissions were properly edited, gramma� cally correct and handed to the Secretariat on � me.
Today, 20 years a� er the adop� on of the Bill of Rights and with the publica� on of this commemora� ve book, we wish to thank her again for her leadership and diligent work.

Our commi� ee also received technical support from Prof Sandra Liebenberg, Prof Halton Cheadle, Prof John Dugard and Prof Igna� us Rautenbach.

We thank the team for their astute and � reless assistance.
There were also members who were not members of the Theme Commi� ee, or even if they were, were unable to a� end mee� ngs regularly due to their execu� ve responsibili� es.

For example the Honourable Speaker, Baleka Mbete, was the Chair of Theme Commi� ee 6 but would par� cipate from � me to � me in the debates of Theme Commi� ee 4.
We cannot forget the invaluable contribu� on of members such as Frene Ginwala, especially regarding the right to security of a person’s body and every person’s right to make decisions about their body.

Similarly, Dullah Omar, Prof Kader Asmal, Dr Zola Skweyiya, Dr Penuell Maduna, Vally Moosa and Essop Pahad guided and o� en directly assisted the Commi� ee.

We acknowledge their contribu� ons.


There were other contributors to the Bill of Rights whose names do not feature but who were ac� vely involved in the discussions and debate.

These included Max Coleman (ANC), Mohseen Moosa (ANC), Richard Sizane (PAC), Louis Green (ACDP) and the late Ben Skosana (IFP) and Collins Chabane (ANC).
The Commi� ee also beneﬁ ted greatly from the uncondi� onal support provided by Hassen Ebrahim and his execu� ve team, Marion Sparg and Louisa Zondo, as well as that of the support team led by John Tsalamandris, with Zuleiga Adams as the Minute Secretary and Pamela Crowley as administra� ve support.

The Commi� ee would not have been able to func� on successfully without their excep� onal assistance.

The Bill of Rights is but one signiﬁ cant chapter of our Cons� tu� on, however.
While salu� ng Theme Commi� ee 4 by means of this book, we recognise and acknowledge in the same breath the dedica� on and hard work of the other ﬁ ve theme commi� ees.

We wish to thank our honourable President and Deputy President for providing the foreword to and a chapter for this book.

Your taking � me from your extremely busy schedules to par� cipate in this process is indeed highly appreciated.
Please also allow me a personal word of thanks to my wife, Kha� ja, for her resolute and uns� n� ng support during that heady but challenging � me, and for the contribu� ons she made to local government in her own right as Chairperson and Speaker.

My three daughters, Raisa, Sumayya and Basheera, were very young at the � me, but they understood our service to the na� on.

We thank them for their understanding.


Reﬂ ections on the Bill of Rights – Theme Committee 4 7 CYRIL RAMAPHOSA Mr Ramaphosa was appointed by President Jacob Zuma as Deputy President of the Republic of South Africa on 25 May 2014.

Deputy President Matamela Cyril Ramaphosa in was born on 17 November 1952 Johannesburg.
He began his studies at the University of the North in 1972, where he became involved in student poli� cs, joining the South African Student Organisa� on (SASO) and the Black People’s Conven� on (BPC).

In 1974, the Deputy President was detained for organising pro- Frelimo rallies, which were held to celebrate the independence of Mozambique.

He was detained for the second � me in 1976 following the Soweto student uprising.

He became the ﬁ rst General Secretary of the Na� onal Union of Mineworkers in 1982.
In 1991, he was elected African Na� onal Congress (ANC) Secretary General, and subsequently became head of the ANC team that nego� ated the transi� on to democracy.

Following the country’s ﬁ rst democra� c elec� ons in 1994, he was elected chairperson of the Cons� tu� onal Assembly, which wrote South Africa’s new democra� c Cons� tu� on.

He moved into the private sector in 1996, and in 2001 founded Shanduka Group, a diversiﬁ ed investment holding company.
He resigned from Shanduka in 2012, following his appointment as Deputy President of South Africa.

Mr Ramaphosa holds a law degree from UNISA.

He has received several honourary doctorates from local and interna� onal universi� es.

He received the Olof Palme prize in Stockholm in 1987.

He was awarded the Na� onal Order of the Baobab in Silver in 2009 for his contribu� on to the mul� party nego� a� ons and for chairing the Cons� tu� onal Assembly.
He was also the Deputy Chairperson of South Africa’s Na� onal Planning Commission.

In December 2012, he was elected Deputy President of the ruling ANC.
8 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 4 BIRTH CERTIFICATE OF OUR NATION Deputy President Cyril Ramaphosa One of the most challenging tasks for cons� tu� on makers is to establish a State that is suﬃ ciently robust to govern eﬀ ec� vely and eﬃ ciently without giving it the power to undermine and violate the rights of the ci� zenry it was created to serve.
When the 490 members of the Cons� tu� onal Assembly were charged with the responsibility of dra� ing South Africa’s Cons� tu� on, which I dubbed the “Birth Cer� ﬁ cate” of our na� on, we approached this task with a vision inspired by the long years of struggle against apartheid.

We determined that it should be our people who would act as the conscience of the State and be the most eﬀ ec� ve guard against abuse.
The late Dullah Omar, speaking as Minister of Jus� ce in 1995, expressed this idea eloquently when he said: The best defenders of the rights of the people are the people themselves.

I believe that if our system of jus� ce is to serve the people of this country, we must give our ci� zens the means to use rights for the beneﬁ ts of themselves and their communi� es.
We must create a culture of human rights that gives South Africans both the conﬁ dence and the internalised understanding of their rights and role in society.

The libera� on struggle was a struggle for human rights and the aﬃ rma� on, recogni� on and protec� on of each South African’s human dignity.

It was also about achieving equality for the masses of our people and ensuring the enjoyment of full civil, poli� cal and socio- economic rights.
These values underpin the basic founda� on of our Cons� tu� on and correctly reﬂ ect the new ethos we sought to create.

This supreme law of the land therefore has as its cornerstone the Bill of Rights, which under the Cons� tu� on must be respected, protected, promoted and fulﬁ lled.
On 24 May 1994 our ﬁ rst democra� cally elected President, Nelson Mandela, said the following when addressing the two Houses of Parliament: Our deﬁ ni� on of freedom of the individual must be instructed by the fundamental objec� ve to restore the human dignity of each and every South African.

This requires that we speak not only of poli� cal freedoms.
My government’s commitment to create a people-centred society of liberty binds us to the pursuit of the goals of freedom from want, freedom from hunger, freedom from depriva� on, freedom from ignorance, freedom from suppression and freedom from fear.

These freedoms are fundamental to the guarantee of human dignity.

It was this deﬁ ni� on of freedom that guided the work of the Cons� tu� onal Assembly.
It is an understanding that was inﬂ uenced by the Africans’ Claims of 1943, n o i t a n r u o f o e t a c i f i t r e c h t r i B TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 99 9 the Freedom Charter adopted at Kliptown in 1955, and key interna� onal instruments such as the Universal Declara� on of Human Rights.

Above all, it is an understanding that was informed by the lived experience of the South African people.
So we aspired to create a bill of rights designed to bring about a culture of human rights founded upon three equally important human aspira� ons: dignity, equality and freedom.

We understood that dignity was the overarching right – the essence of the society we hoped to create – and that dignity ﬁ rst had to be expressed in equality.

Our history remains with us, as noted in the Cons� tu� on’s Preamble.
Therefore we knew equality was not simply a ma� er of equal opportunity for individuals within our society, or of equal standing before the law.

We aspired to so much more.

As set out in the Preamble to our Cons� tu� on, we sought to establish a society based on social jus� ce, to improve the quality of life of all our ci� zens, to free the poten� al of each person.
With this in mind, we cra� ed equality provisions that addressed both the personal and the social aspects of equality, with a full suite of social and economic rights, from basic human survival needs for food, shelter and care, to educa� on and labour rights, laying down principles through which people could exercise their freedoms.

Freedom, the third essen� al element in a culture of human rights, is in turn ar� culated and ampliﬁ ed in a suite of seven individually expressed rights.
Some of them – security of the person, privacy, opinion, expression – func� on at the personal level, while others – assembly, associa� on, poli� cal par� cipa� on – are exercised socially.

It is essen� al to a culture of human rights that it suﬀ use both the private and the public, the individual and the group, the personal and the social.

For dignity is enhanced when personal claims on rights are tempered by a commitment to the needs of others and the claims of the wider society.
By placing human dignity at the epicentre of our human rights architecture and underpinning it with commitments to personal and social equality and freedom, the rights acquire a higher standing than merely that of a set of restraints upon the state.

The Bill of Rights is the ethos of our na� on – a poli� cal and legal expression of our shared humanness, our values and our social compact.
Looking back across 20 years, we are acutely aware that the struggle for aﬃ rma� on, recogni� on and protec� on of our rights s� ll has some way to go.

We have experienced these rights being invoked in circumstances we might not have envisaged, in ways o� en inconvenient to the State or disconcer� ng to some in our society.
This book outlines the contribu� ons of the core members across poli� cal par� es in Theme Commi� ee 4 of the Cons� tu� onal Assembly process, but there were many people who played a signiﬁ cant role in the phases before the ﬁ nal cra� ing and adop� on of our Bill of Rights.
The book contains interes� ng anecdotes, such as those about the removal of the lockout clause; the architecture of the labour clause; the conten� ous nature of language, culture and religion in educa� on; and the horizontal applica� on of the nondiscriminatory provisions of the equality clause and the informa� on clause.

It details the very important introduc� on of socio-economic rights in the Cons� tu� on, which was vehemently opposed by some par� es.
The property clause in the Cons� tu� on eﬀ ec� vely na� onalised water and minerals and endorsed land reform, res� tu� on and redistribu� on.

10 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 11 While the Interim Cons� tu� on allowed expropria� on only on the narrow grounds of public purpose, the ﬁ nal Cons� tu� on expanded this concept by including and deﬁ ning public interest to include redress as well as land reform, res� tu� on and redistribu� on.
The Bill of Rights is the product of our history, the demands of earlier genera� ons for equal rights, the inﬂ uence of hundreds of individuals and NGOs, interna� onal exper� se, technical advice and the submissions of ordinary South Africans.

All these coalesced into a document which is proudly owned and ﬁ ercely defended by all South Africans.
The “Birth Cer� ﬁ cate” we acquired on 10 December 1996, following the adop� on of our Cons� tu� on into law, gave all South Africans a new life that is based on a human rights culture that is second to none.

Chairperson of the Cons� tu� onal Assembly Cyril Ramaphosa and deputy chairperson Leon Wessels.
Photo: With the permission of Hassen Ebrahim Photos: Siyasanga Mbambani TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 11 KADER ASMAL by Louise Asmal Kader Asmal was born in 1934 in the small town of Stanger, now called KwaDukuza, in what is today KwaZulu-Natal.

His full name was Abdul Kader Asmal, but he dropped the Abdul when in London studying, as people teased him and called him Abdul the Bulbul Amir, a� er some student song.

He was the ﬁ � h of six children.


His father ran a small sweet shop, where Kader spent many hours because he was asthma� c and unable to go to school.

Lying on a shelf under the table, he listened to the BBC on his father’s radio and greatly improved his English language skills.

Desperate about Kader’s asthma, his mother took him to a white doctor who prescribed a po� on of egg yolk, nutmeg and whiskey – which is how he acquired his taste for whiskey.
During the war, his father generously provided sugar and other items to the white women whose husbands were away ﬁ gh� ng – but he was never paid, and the shop went bankrupt.

There was no money to send Kader to university, so he went to a teacher training college.

Back in Stanger, apartheid meant that he had to teach in the local Indian school.

His uncle made a proposal on his behalf (as was the custom) to a young woman he was keen to marry, but her family turned him down because of his asthma.
In the evenings he gave free classes to young Africans un� l he was forbidden from con� nuing, so he took out his pension money and sailed in the Union Castle to England.

He taught for a while in a local school and then got a scholarship to go to the London School of Economics, where he studied law.

Kader married me (then Louise Parkinson) in his last year, despite his professor cau� oning him that this would prove disastrous.
It was not his marriage, however, but the � me he spent giving talks about apartheid, which meant he did not obtain a ﬁ rst-class degree.

12 Reﬂ ections on the Bill of Rights – Theme Committee 4 Of course he could not return to South Africa with me, as the Immorality Act was s� ll in force.

Finally he took up a post as a law lecturer at Trinity College Dublin.

When the Irish An� -Apartheid Movement started, Kader also became involved with se� ng up the Irish Civil Liber� es Union.
He was a great cricket enthusiast, and Trinity College assumed that, as someone of Indian origin, he would make a great member of their cricket team.

The family all went to watch the ﬁ rst match – and our two sons did cartwheels when he was out for a duck.

At long last back in South Africa when freedom came, Kader served two terms in the Government – one as Minister of Water Aﬀ airs and Forestry and one as Minister of Educa� on.
Kader wrote many ar� cles, delivered many speeches, and campaigned on many issues.

Among the most iconic of these were: In 1982 Kader was part of an interna� onal commission of enquiry into the massacre of thousands of Pales� nians and refugees in Sabra and Cha� la.

In 1983 he chaired an enquiry into the lethal use of ﬁ rearms by the Security Council in Northern Ireland and wrote the report in 1985.

He later wrote a memoir, Politi cs in my blood, which was published in 2011.
He was argumenta� ve, and he was a perfec� onist who nearly drove me to divorce with his passion for � diness, but he had a great sense of humour and was very caring – not only about abstract issues but also in rela� on to the individuals he came in contact with.

A� er a long ba� le with myeloma (cancer of the bone marrow), he died on 22 June 2011.
Reﬂ ections on the Bill of Rights – Theme Committee 4 131313 5 THE GENESIS Louise Asmal, with references to the book by Kader Asmal Our South African Bill of Rights grew out of the Cons� tu� onal Commi� ee set up by the ANC.

The Cons� tu� onal Commi� ee ﬁ rst met in 1986 to draw up plans for the future of a free South Africa.

Various legal luminaries, including Kader Asmal, met in Lusaka, where they planned to write a document with which they could challenge the Na� onal Party.
The idea of producing a Bill of Rights germinated and ﬂ ourished during these mee� ngs.

“The Cons� tu� on”, wrote my husband later, “inscribes a host of rights in the Bill of Rights that have relevance to our ability to par� cipate in and enjoy diverse communi� es – such as equality, dignity, freedom of associa� on”.

The ANC had long been formula� ng principles for a future democra� c South Africa.
In 1943, the Africans’ Claims document had been produced, which demanded that the South African people be granted the same rights and freedoms as those of the Atlan� c Charter, compiled by the Allied powers in 1941.

In 1954, the Women’s Charter was adopted by the Federa� on of South African Women.

This was, in many ways, a very forward-looking document.
The Freedom Charter of 1955, a statement of core principles by the South African Congress Alliance, which consisted of the ANC and its allies, was the result of widespread consulta� on and requests for ideas from communi� es all over the country.

Characterised by its opening words, “The People Shall Govern!”, it laid – so wrote my husband – the founda� on for our country’s present democra� c Cons� tu� on.

The journey from Dublin, where we lived at the � me, to Lusaka was long and wearisome.
Eventually the Cons� tu� onal Commi� ee decided that, although they would con� nue with their work in Lusaka, it would make more sense for Kader and Albie (Sachs) to meet on their own in Europe to draw up the Bill of Rights, which could be approved later by the Commi� ee.

Albie was at the � me living in London, where he had gone for treatment a� er losing an arm and the sight in one eye in a car bomb a� ack.

It was decided that he would come to our home in Dublin to start wri� ng.
This duly happened, although for a long � me there was a diﬀ erence of opinion as to whether the document had been wri� en on the kitchen table or the dining-room table.

Albie thought the la� er, and wanted to place it in the Na� onal Museum, but it was no longer in our possession.

I thought it had been the kitchen table – an ordinary, round, white plas� c table which I later brought to South Africa and used in the garden, where it disintegrated in the sun.
Eventually the subject came up at a mee� ng where Albie was speaking, so I asked him again which table had been used.

It transpired that Albie had wri� en in the dining room and Kader in the kitchen – although they did subsequently meet in the kitchen to discuss their conclusions.

I typed up their wri� ngs – necessary because Albie was reduced to wri� ng with his le� hand, and Kader’s handwri� ng was always virtually illegible.

I also fed them lunch.


This was a small contribu� on to what became a seminal document in the development of South Africa, but one which I am proud to have made.

s i s e n e g e h T 141414 Reﬂ ections on the Bill of Rights – Theme Committee 4 HASSEN EBRAHIM is an experienced Hassen Ebrahim lawyer who was in� mately involved in the nego� a� ons for and implementa� on of South Africa’s ﬁ rst democra� c Cons� tu� on.
He ﬁ rst served as the Na� onal Coordinator of the Nego� a� ons Commission of the ANC during the CODESA nego� a� ons of the Interim Cons� tu� on.

He was a technical advisor to the Transi� onal Execu� ve Council in the run-up to the 1994 elec� ons in South Africa, and then Chief Execu� ve Oﬃ cer of the Cons� tu� onal Assembly, which was responsible for the management of the nego� a� ons process.
His involvement during the cons� tu� onal process in South Africa led to a public par� cipa� on strategy that has become the model for best prac� ce worldwide.

A� er 10 years as a senior public servant, Mr Ebrahim went on to act as advisor on cons� tu� on making and the nego� a� on of transi� ons in Zimbabwe, Sudan, South Sudan, Libya, Tunisia, Sierra Leone, Liberia and Nepal.

He has also served at Senior Media� on Expert on the UN’s Media� on Standby Team.
In Somalia, he supported the Speaker of the Somali parliament as Senior Technical Expert to help establish the required ins� tu� ons of State and implement their new cons� tu� on.

He has also made his experience and exper� se available to the Philippines peace process towards the establishment of the autonomous Bangsamoro government.

He subsequently played a suppor� ng role in the ac� vi� es of the Yemeni Cons� tu� onal Dra� ing Commission.
More recently, he has been assis� ng the Somali Federal government in its eﬀ orts to work towards its ﬁ rst democra� c elec� ons.
Reﬂ ections on the Bill of Rights – Theme Committee 4 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 15 15 6 ARCHITECTURE AND PUBLIC PARTICIPATION Hassen Ebrahim These are my reﬂ ec� ons on the period during which I served as the Execu� ve Director of the Cons� tu� onal Assembly’s administra� on, which was established to manage the nego� a� on process and the dra� ing of the Cons� tu� on, both administra� vely and through a process of public par� cipa� on.
Introduc� on Twenty years a� er the adop� on of the South African Cons� tu� on, the process we followed in the wri� ng of the Cons� tu� on remains the interna� onal benchmark for best prac� ce.

As with our Bill of Rights and the provisions formulated rela� ng, inter alia, to equality, the right to life and socio-economic rights, the process of public par� cipa� on we applied was groundbreaking, and was a proud testament to the brilliance of South Africa’s cons� tu� on makers.
It remains the case study that other countries involved in cons� tu� on making draw lessons from.

Managing the Cons� tu� onal Assembly administra� on as its Execu� ve Director was a dream come true for me, and proved to be the highlight of my career.

The adop� on of the Cons� tu� on was truly a deﬁ ning moment, which was the culmina� on of our many decades of struggle for freedom.
It was therefore as rewarding to be a part of this rich history as it was a privilege to work with some of the most gi� ed of South Africa’s leaders in the making of this Cons� tu� on.

The general elec� on of 27 April 1994 was the product of a nego� ated package of agreements designed to bring an end to the conﬂ ict that South Africa experienced at the � me.
When South Africans voted in this elec� on – the majority of them for the ﬁ rst � me – they provided the newly elected leaders with two separate and dis� nct mandates.

These were to govern the new, democra� c society, and to dra� the ﬁ nal Cons� tu� on.

The responsibility for dra� ing the ﬁ nal Cons� tu� on fell to the Cons� tu� onal Assembly, comprising 400 poli� cal leaders in the Na� onal Assembly and 90 members in the Senate.
Notwithstanding the electorate’s mandate to dra� the Cons� tu� on, it was decided that the people s� ll needed to be consulted and involved in the process of cons� tu� on making.

The process had to be made transparent, open and credible.

Moreover, the ﬁ nal Cons� tu� on required an enduring quality that would ensure the support of all South Africans, irrespec� ve of their ideological stance.
Considering the country’s history of poli� cal conﬂ ict and mistrust, the credibility of the ﬁ nal Cons� tu� on had to be an important goal.

It was believed that such credibility would depend on a process of cons� tu� on making through which people could claim ownership of the document and commit themselves to its values.

It was also necessary to calm the fears and concerns of minori� es and yet ﬁ nd favour with the majority.
In short, it had to be ensured that the cons� tu� onal founda� ons of our democracy would be beyond all ques� on.

This made it essen� al to embark upon a programme of public par� cipa� on.

The South African people not only had to feel part of the process, but the content itself had to be representa� ve of their views.

If the heart of the Cons� tu� on can be found in its Bill of Rights, the founda� on on which the Cons� tu� on would rest would be its legi� macy and its public ownership.
It is therefore hardly surprising that the public par� cipa� on programme played such a fundamental role in nego� a� ng the Bill of Rights 161616 Reﬂ ections on the Bill of Rights – Theme Committee 4 16 Context and background The mandate of the Cons� tu� onal Assembly prescribed a � me limit of two years within which to complete its work1.

The deadline would be 8 May 1996.

A daun� ng task indeed!


The Cons� tu� onal Assembly established a 44-member mul� -party Cons� tu� onal Commi� ee, which was tasked with the responsibility of nego� a� ng the dra� text that was to be placed before the Plenary for adop� on.

The Cons� tu� onal Commi� ee was supported by six theme commi� ees.

The terms of reference of each theme commi� ee was founded on a division of the 34 cons� tu� onal principles which were nego� ated as part of the Interim Cons� tu� on2.
Theme Commi� ee 1 was responsible for the character of the democra� c state, Theme Commi� ee 2 had to address the structure of government, Theme Commi� ee 3 had the responsibility of deﬁ ning the rela� onship between the diﬀ erent levels of government, Theme Commi� ee 4 had the ma� er of human rights to deal with, Theme Commi� ee 5 had as their focus the judiciary and legal systems, and lastly Theme Commi� ee 6 dealt with specialised structures of government.
Each theme commi� ee comprised 30 members of all poli� cal par� es, in propor� on to their representa� on.3 Because of the dispropor� on in the size of the bigger par� es compared to that of the smaller ones, there was an agreed-upon bias in favour of the smaller par� es.

To further ensure equal representa� on, each theme commi� ee had three chairpersons.

This ensured that mee� ngs were chaired by representa� ves of diﬀ erent poli� cal par� es in rota� on.
The seriousness with which poli� cal par� es took the task of Theme Commi� ee 4 is clearly evident from the membership of the Commi� ee and the chairpersons iden� ﬁ ed to represent the par� es.

Tony Leon represented the Democra� c Party, Membathisi Mdladlana the ANC, and Gert Myburgh the Na� onal Party.

Each theme commi� ee was also provided with the best technical experts available.
Theme Commi� ee 4 were able to draw on the exper� se of Prof Halton Cheadle, Prof John Dugard, Prof Sandy Liebenberg, and Prof Igna� us Rautenbach, each of them being leading experts tasked to provide the Commi� ee with the required technical support.

However, because the Theme Commi� ee dealt with various specialised ma� ers, they also enjoyed the support of addi� onal technical advisers where this was required.
In addi� on, the Commi� ee was able to lean on an extremely talented and mo� vated support team led by John Tsalamandris, with Zuleiga Adams as the Minute Secretary and Pamela Crowley providing administra� ve support.

While the Cons� tu� onal Assembly was established on 9 May 1994, it was only in August of that year that I was appointed, along with my execu� ve team, which included Marion Sparg and Louisa Zondo.
Ma� ers cri� cal to the transi� on to democracy took precedence, and the task of nego� a� ng the ﬁ nal Cons� tu� on only took place some� me early in 1995.

A basic administra� on team was established by December of that year, and the programme for the nego� a� on and dra� ing of the Cons� tu� on, together with a suppor� ng public par� cipa� on programme, was approved.
With fewer than 18 months to complete our task, the ﬁ rst challenge we were confronted with was the limited � me within which the Cons� tu� on had to be adopted.
Cra� ing the Bill of Rights The mandate and work of Theme Commi� ee 4 was guided by Cons� tu� onal Principle II, which stated: Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liber� es, which shall be provided for and protected by entrenched and jus� ciable provisions in the Cons� tu� on, which shall be dra� ed a� er having given due considera� on to inter alia the fundamental rights contained in Chapter Three of the Cons� tu� on.
16 Reﬂ ections on the Bill of Rights – Theme Committee 4 17 Cons� tu� on making is not for the faint-hearted, least of all when dealing with provisions aﬀ ec� ng human rights.

The challenges that Theme Commi� ee 4 faced were enormous.

To begin with, they were required to deal with the demand for the protec� on of minority rights, which had to be counter-balanced against the will and interests of the majority.
Another area of major focus was the demand for the transforma� on of society, which found expression in a range of socio-economic rights.

Furthermore, it was also necessary to deal with a range of individual and group rights, including the right to life, equality and the protec� on and promo� on of culture and religion.

The real ques� on for the administra� on, however, was how we would arrange for the par� cipa� on of the broader South African public in very conten� ous debates.
We were required to make the process inclusive.

This challenge was addressed by pu� ng together a comprehensive public educa� on programme.

Firstly, areas had to be iden� ﬁ ed for which public submissions were required.

This was done by the nego� ators, who agreed on agendas for each of the theme commi� ees.

Based on these agendas, submissions were invited through adver� sements in major newspapers.

The programme developed was audacious and diﬃ cult.
There was no precedent for the public par� cipa� on we required anywhere in the world.

The challenge was to ﬁ nd eﬀ ec� ve means of entering into eﬀ ec� ve dialogue and consulta� on involving a popula� on of more than 40 million people.

South Africa had a large rural popula� on, most of which was illiterate and did not have access to print or electronic media.

Also, South Africa had never had a culture of cons� tu� onalism – or even human rights for that ma� er.
We realised that without the necessary empowerment, consulta� on would be hollow and meaningless.

Hence, by empowering civil society to par� cipate in the cons� tu� on-making process, the Cons� tu� onal Assembly was able to add a new dimension to the concept of democracy in South Africa; that is, a par� cipatory dimension.

In addi� on, the process had to be seen to be transparent and open.
An objec� ve of this strategy was to reach the disadvantaged rural communi� es by ac� vely dissemina� ng informa� on and carrying out cons� tu� onal educa� on.

The media campaign was launched on 15 January 1995, just before work in the Cons� tu� onal Assembly began.

This campaign was aimed at raising public awareness of the cons� tu� on- making process in order to encourage individuals and interest groups to make submissions, and to publicise cons� tu� onal public mee� ngs.
The primary message was that an important process was unfolding, the outcome of which would aﬀ ect the lives of all South Africans, both now and in the future.

We promoted speciﬁ c messages through various adver� sing campaigns – in which we used the slogans “You’ve made your mark, now have your say”, and “It’s your right to decide your cons� tu� onal rights”.

A key principle employed was to ensure that the process was made accessible to the broadest possible community at all � mes.
Every eﬀ ort was made to ensure that ordinary members of society were able to access the process, both physically and intellectually.

This was accomplished by ensuring that the public was provided with toll-free telephone numbers, addresses and public opportuni� es in diﬀ erent locali� es to engage in the process.

In addi� on to using the diﬀ erent languages, we ensured that all informa� on, including the Cons� tu� on itself, was published in plain and accessible language.
We even employed a marke� ng company to assess the penetra� on and impact of our media campaign and public a� tudes to key cons� tu� onal issues.

The results revealed that the Cons� tu� onal Assembly media reached 65% of all adult South Africans in the three months between 15 January and 19 April 1995.
However, the survey also revealed that the public was clearly scep� cal about the seriousness of the Cons� tu� onal Assembly in calling for their involvement, and about the way in which their submissions would be received.

The surveys also provided us with an indica� on as to what we would need to do to ensure greater legi� macy.
18 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 19 Poli� cal par� es were given an important role to play in the process through the organisa� on of cons� tu� onal public mee� ngs, which served two func� ons.

The poli� cal actors in the Cons� tu� onal Assembly reported on their ac� vi� es, and the public was invited to voice their views on the various issues addressed in the nego� a� on process.
Each submission was then recorded and transcribed for considera� on by the various poli� cal structures established by the Cons� tu� onal Assembly.

Most of these mee� ngs were held in rural and disadvantaged communi� es.

The ra� onale was that people in these areas did not have access to media to follow the process.

Furthermore, they were not equipped to contribute on issues without assistance.

Hence, it was necessary to ensure that the programme had an educa� onal orienta� on.
To this end, the Cons� tu� onal Educa� on Programme was developed.

A par� cipatory workshop approach was adopted.

Local structures of civil society were consulted in prepara� on for each public mee� ng.

Between February and August 1995, 26 public mee� ngs were organised in all nine provinces.

More than 200 members of the Cons� tu� onal Assembly were involved with these mee� ngs, 717 organisa� ons par� cipated, and 20 549 people a� ended.
For most of these, this was their ﬁ rst experience of direct interac� on with their elected representa� ves.

More importantly, this was the ﬁ rst occasion in South Africa on which public mee� ngs were held involving poli� cians who had previously been at war with each other but who were now talking to the people together.

The public mee� ngs were extremely successful.

Discussions were lively, ideas original, and the exchange of views appreciated.
These mee� ngs also served to highlight the point that cons� tu� ons are about basic values aﬀ ec� ng society and are understood by even the most uneducated.

It was a humbling experience, and demonstrated clearly that cons� tu� onal issues and debates are not the sole domain of the intellectual elite: they belong to all.

In addi� on to the public mee� ngs that were held, a Na� onal Sector Public Hearing Programme4 was implemented.
This was the result of theme commi� ees expressing the need to consult and engage with those structures of civil society that had an interest in par� cular debates.

Examples were consulta� ons that were held on the various rights contained in the Bill of Rights, the judiciary, security services, and ins� tu� ons suppor� ng cons� tu� onal democracy and public administra� on.

Each issue required consulta� on with a par� cular sector of civil society.
Quite understandably, Theme Commi� ee 4 received the bulk of submissions from the public and had to process 5 634 submissions by 30 June 1995.

A� er the Theme Commi� ee had completed its work, it received 1 360 further submissions and 12 000 pe� � ons.

In addi� on, a workshop on Human Rights and Interna� onal Law was held in April 1995.

It had been organised jointly with both na� onal and interna� onal partners.
Members also a� ended workshops on gender, pornography, abor� on and freedom of expression, organised by various organisa� ons such as the University of the Western Cape Community Law Centre, the Ins� tute for Mul� -Party Democracy, and the Freedom of Expression Ins� tute.

By the end of the process, Theme Commi� ee 4 had presented 33 reports and explanatory memoranda and a dra� Bill of Rights which was tabled at the Subcommi� ee of the Cons� tu� onal Commi� ee on 9 and 10 October 1995.
It was only a� er the Easter recess of 1996 that the issues of deadlock emerged.

In addi� on, the process itself was not without challenges.

The Cons� tu� onal Assembly had throughout prided itself on its excellent rela� onship with structures of civil society.

This rela� onship was based on the concept of a partnership in a process to dra� the single most important legal document in the land.

However, several structures saw themselves as s� ll being outside the process.
This was par� cularly true when poli� cal par� es found it necessary to hold bilateral or mul� lateral mee� ngs.

The complaint was that even if consulta� ons did take place, the agreements reached between the elected representa� ves in the Cons� tu� onal Assembly s� ll had to be open to comment by these structures.

Reﬂ ections on the Bill of Rights – Theme Committee 4 19 In total, over two million submissions were received in all oﬃ cial languages.

These were translated and processed into reports.


The process successfully encapsulated the views, opinions and ideas of all stakeholders and role-players, and further captured possible methodologies in dealing with issues which were sensi� ve and very diﬃ cult to nego� ate at the � me.

However, this created a further challenge: what issues should be dealt with through legisla� on or in the Cons� tu� on?
To address this challenge, the panel of Cons� tu� onal Experts provided guidelines as to which issues should be dealt with, either through legisla� on or in the Cons� tu� on.

This greatly assisted the theme commi� ees in dealing with the magnitude of submissions received.

Unfortunately, the great volume of public comments increased stakeholders’ concern that their voices would not be fully heard.
The administra� on therefore resolved that it would be vital to launch a comprehensive and inclusive public par� cipa� on process subsequent to the publica� on of the working document.

A group of technical, legal and linguis� c experts was tasked with preparing the working dra� .

This dra� set the scene for the penul� mate nego� a� on process, during which a vast number of nego� a� ons and agreements took place and were reached.
Consequently, the dra� ers were tasked with further reﬁ ning the working document for addi� onal discussions at the subsequent mee� ngs of the Cons� tu� onal Commi� ee.

While the two-year deadline was becoming extremely daun� ng, the perseverance of all role-players and their poli� cal will paid oﬀ and ensured that the impossible � melines were met.
The Cons� tu� onal Commi� ee was able to debate the reports prepared by the theme commi� ees, which ensured ci� zens that every voice was being heard and that every opinion and comment ma� ered.

The closer we came to ﬁ nalising the Cons� tu� on, the clearer it became to me that greater importance was being a� ached to reaching consensus than to merely relying on the required majori� es.

This I found most heartening.

Conclusion There are two important lessons that we can learn from this experience.
Firstly, the architecture of the text is quite deliberate.

Respect for human dignity is contained in the ﬁ rst sec� on of the Cons� tu� on, and the Bill of Rights is given pride of place as the second chapter, immediately a� er the establishment provisions.

This is intended to send out a clear message as to the importance of human rights in our cons� tu� onal democracy.

And, to this day, our Bill of Rights remains an interna� onal benchmark.
The second lesson that we can learn, relates to the importance of public par� cipa� on and con� nued civic educa� on.

Despite the vigorous and robust contesta� on that o� en takes place in poli� cal debate and in our courts, not only is the legi� macy of our Cons� tu� on indisputable, but the people’s ownership thereof remains steadfast.

Perhaps con� nued civic educa� on, especially with regard to human rights, would go a long way towards strengthening our cons� tu� onal democracy.
1 2 3 The Cons� tu� onal Assembly was established on 9 May 1995.

Schedule 4 of the Interim Cons� tu� on.

The Chairpersons of Theme Commi� ee 4 were: AJ Leon (DP); MMS Mdladlana (ANC); GB Myburgh (NP).
Members: K Asmal; D Bakker; IM Cachalia; S Camerer; J Chalmers; M Coleman; BO Dlamini; G Ebrahim (alt); SLE Fenyane; T Gamndana; XF Gasa (alt); D Govender; P Govender (alt); JL Kgoali; EN Lubidla (alt); BS Mabandla; TGG Mashamba; MG Masher (alt); P Mathebe; LR Mbuyazi (alt); KR Meshoe (alt); SB Mfayela (alt); MW Mfebe (alt); MA Mncwango; IJ Mohamed (alt); RS Molekane; CP Mulder; YL Myakayka-Manzini; MAA Njobe (alt); MIB Ntuli; GNM Pandor; MM Phenethi (alt); MM Piliso; RJ Radue; SM Rasmeni; B Ranchod; RT Rhoda; E Saloojee; RK Sizani; BM Skosana; D Smuts (alt); G Solomon; JE Sosibo; ME Surty; E Thabethe; B Thompson; TJ Tshivhase; VM Tyobeka; V Viljoen; SC Vos; CH Werth (alt); LM Xingwana (alt).
Technical Commi� ee - H Cheadle; J Dugard; S Liebenberg; I Rautenbach.

Staﬀ : John Tsalamandris, Managing Secretary; Zuleiga Adams, Minute Secretary; Pamela Crowley, Administra� ve Secretary.
20 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 21 4 This Programme successfully carried out the following schedule of mee� ngs: SECTOR DATES, 1995 Judiciary Business 27 Feb 8 May VENUE Unisa STRUCTURES ATTENDED PARTNER 38 (70 people) MPD Parliament 20 (80 people) Children's rights 13 May HSRC - Pretoria 30 (120 people) Tradi� onal authori� es 12–13 May Parliament 8 (220 people) Religious groups 26 May World Trade Centre 50 (140 people) Youth Labour Women 27 May World Trade Centre 40 (160 people) 3 Jun World Trade Centre 20 (140 people) 2–4 Jun World Trade Centre 85 (170 people) HSRC MPD IDASA IDASA IDASA IDASA Local government 14 Aug Parliament 58 (62 people) Socio-economic rights 1 Aug Parliament 103 (110 people) Land rights 1–2 Aug Parliament 64 (76 people) Hassen Ebrahim (left ), Cyril Ramaphosa (centre) and Leon Wessels (right).
Enver Surty (left front), Hassen Ebrahim (left back), Sandy Liebenberg (right back) and Marion Sparg (right front).

Photo: With the permission of Hassen Ebrahim Reﬂ ections on the Bill of Rights – Theme Committee 4 21 LEON WESSELS Dr Leon Wessels was born on the 19th of April 1946, and can be described as a lawyer, a poli� cian and an ac� vist.
He served in the Na� onal Party government during the ﬁ nal apartheid years, and was one of very few Afrikaner poli� cians to show public contri� on for the acts of that government.

He was appointed as the MP for Krugersdorp from 1977, and served in President FW de Klerk’s Cabinet as Minister of Local Government, Na� onal Housing and Manpower.

During South Africa’s transi� on to democracy, Dr Wessels par� cipated in the CODESA nego� a� ons in Kempton Park (1991–1994).
This was the process that led up to democracy and was also the precursor to the development of South Africa’s Cons� tu� on.

During the period 1994–1996, Dr Wessels con� nued to make a contribu� on through public service as Deputy Chairperson of the Cons� tu� onal Assembly, before stepping down from Parliament and poli� cs in December 1996, at the incep� on of the ﬁ nal Cons� tu� on.
At this � me, he decided to take the opportunity to study further, and went on to a� ain his LLM (1997) and LLD (2001) at the Rand Afrikaans University (RAU).

Dr Wessels served as a Commissioner in the South African Human Rights Commission (HRC) (1999–2009), a product of the Cons� tu� on, which he played a role in developing, and which ensures that human rights con� nue to be paramount in South African society.
While at the HRC, he was responsible for monitoring the Promo� on of Access to Informa� on Act 2 of 2000 – a law central to ensuring transparency in government, business and civil society.

In keeping with his passion for human rights, Dr Wessels is currently the Director of the Centre for Human Rights at the University of the Free State, and Honourary Professor of Public Law at the North-West University (Potchefstroom).
22 Reﬂ ections on the Bill of Rights – Theme Committee 4 7 THERE IS NO FINISH LINE Leon Wessels What is appropriate for one country in the light of its history, is not necessarily appropriate in another country with a diﬀ erent history.

Our ﬁ nal consti tuti on must now be forged in the light of our history and on the basis of the agreed consti tuti onal principles which both reﬂ ect that history and are part of it.
(Arthur Chaskalson, president of the Cons� tu� onal Court, 1995) Doing ba� le with old ghosts Cyril Ramaphosa’s elec� on as chairperson and my elec� on as deputy chairperson of the Cons� tu� onal Assembly (CA) signalled the start of the most memorable experience of my poli� cal career.

The Assembly was cons� tuted by the Na� onal Assembly and the Senate – and was charged to write the ﬁ nal Cons� tu� on.
When Cyril and I met for the very ﬁ rst � me in his oﬃ ce, I said to him: “I know the CA elected me as deputy chairperson and not as a joint chairperson.

I was taught that the task of the deputy chairperson is to help the chairperson.

That is exactly what I am going to do; I am going to support you to ensure that we ﬁ nish our task within the prescribed � me limit of two years.” That is exactly what happened.
Cyril and I had a great rela� onship: we didn’t discuss poli� cs, we didn’t nego� ate Na� onal Party ma� ers, we didn’t socialise with one another – we worked together to write the South African Cons� tu� on.

Two years later, on 8 May 1996, at 12:08 – eight minutes later than planned – the CA adjourned.

The job had been done.

For me personally, it had been an experience never to be forgo� en.

The manner in which Cyril made me feel part of that CA team is something I will always treasure.
He never made me feel like his “deputy”.

He treated me as an associate – a partner.

Two very interes� ng oﬃ ces where allocated to Cyril and me.

In the old House Assembly we were separated from our party colleagues.

Cyril moved into the oﬃ ce formerly used by the Head of State.

That was the very same oﬃ ce in which John Vorster, 20 years earlier, had made uninspiring comments about the poli� cal future of South Africa to a group of young people I had organised to meet with him.
They le� that mee� ng disheartened.

Now, from that very oﬃ ce, an ANC leader was being asked to lead the process that would ensure that the legi� mate poli� cal aspira� ons of all South Africans would be accommodated in their new Cons� tu� on.

Next to this oﬃ ce was a commi� ee room, where the Head of State used to receive delega� ons when Parliament was in session.
I had been in that commi� ee room when PW Botha received delega� ons from the House of Delegates and the House of Representa� ves: he scolded them for not having taken a ﬁ rm stand against the communist onslaught and for not having supported him when he pushed further security legisla� on through Parliament.

Now, in this oﬃ ce, the execu� ve of the CA met every week to manage the CA process and ensure that it would remain on track.
e n i l h s i n i f o n s i e r e h T TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 2323 23 O� en, when I visited Ramaphosa in his oﬃ ce or sat in the commi� ee room under his stewardship, I could see Vorster and Botha in my mind’s eye; some� mes I had mental debates with them about current events.

I frequently had to pinch myself to appreciate how profound the changes were that I was privileged to witness at close range.
My own oﬃ ce was immediately above that of Ramaphosa.

Earlier occupants of that oﬃ ce had been NP heavyweights: Fanie Botha, Piet Koornhof and FW de Klerk.

Their ghosts were not as ac� ve, however, as those in Cyril’s oﬃ ce.

From an eye-for-an-eye conﬂ ict to eye-to-eye nego� a� ons The evolu� on from the autocra� c order in which the majority of a minority had ruled the majority to a full democracy was built upon 34 cons� tu� onal principles.
One of those principles determines that: Everyone has to enjoy all universally accepted fundamental rights, freedoms and civil freedoms for which provision must be made and which must be protected by entrenched and jus� ciable provisions in the Cons� tu� on, that must be drawn up with due allowance for, among others, the fundamental rights contained in Chapter 3 of this Cons� tu� on (my emphasis).

The road leading up to this agreement was a steep and diﬃ cult one.
The cons� tu� onal principles were developed over a long period of � me under ﬂ uctua� ng and turbulent condi� ons.

Direct and diﬃ cult nego� a� ons took place at various venues and in a variety of ins� tu� ons.

The principles and the process were inclusive, and were fully supported and underwri� en by all the poli� cal par� es.

No one challenged the fact that the Cons� tu� onal Court had been asked to cer� fy that the new Cons� tu� on was reconcilable with the principles the par� es had agreed to.
This cer� ﬁ ca� on took place at the end of 1996.

In this way, a� er years of nego� a� on and struggle for which many people had given their lives, South Africa achieved a modern Cons� tu� on with one of the most comprehensive human rights manifestos on the planet – one nego� ated principle had produced no fewer than 27 rights.

Since then, we have become engaged in arm wrestling about the interpreta� on and implementa� on of these rights.

To date, the Cons� tu� onal Court has delivered 631 judgments.
This is much be� er, however, than cas� ng stones or tossing teargas at one another.

Twenty years on and despite its shortcomings, poli� cal commentators s� ll regard our Cons� tu� on as the greatest unifying factor in our land.

The Cons� tu� on is the highest law in the land and binds all people and ins� tu� ons – the government, Parliament, the local branch of the Society for the Preven� on of Cruelty to Animals, the re� rement home around the corner, and even every crèche.
Today, no one may live outside the cons� tu� onal framework.

The concept of Afrikaner self-determina� on as a universal human right as well as the associated group rights frequently surfaced at the Kempton Park nego� a� ons.

Those who laid claim to this right at the � me did so without any interest in any of the other exis� ng universal rights.

Such was the passion and dedica� on devoted to this one right, that for those advoca� ng it, it was as if no other right existed.
On the ﬂ ip side of the human rights debate, some delegates showed similar enthusiasm for socio-economic rights and for the entrenchment of equality in the Cons� tu� on – as if these were the only rights that ma� ered.

Then there were the vic� ms of crime, who condemned the prohibi� on of the death penalty, and seemed to believe that the misery of crime would disappear should this single ar� cle be amended.
24 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 25 Ul� mately, however, the answer could be found in the cons� tu� onal direc� ve of the Kempton Park principle, namely that the Cons� tu� on had to be built on this corner stone: “that all South Africans have to enjoy all universally acknowledged fundamental rights, freedoms and civil rights”.

Indeed, it was about so much more than any one person and his or her favourite rights.
It was also about those rights that did not always favour the individual.

South Africans are inclined to be quick to claim a right for themselves (my rights!)

when they are the beneﬁ ciaries of such rights.

However, they tend to be slow to respect the rights of others (your rights?).
Today, twenty years a� er the adop� on of the Bill of Rights, prejudice frequently threatens to upset the applecart: people’s prejudices have come to carry more weight than their loyalty to the cons� tu� onal rules that were agreed upon.
Consequently, we s� ll work against one another: one group complains that aﬃ rma� ve ac� on is unjust and that it boils down to punishment; and another group claims that the s� pula� ons regarding property rights are too limi� ng and that they are being sentenced to perpetual serfdom.

The provisions of the Cons� tu� on are not wri� en in stone, but they need to be respected and can only be altered in an orderly fashion.
A� er all is said and done, the Cons� tu� on makes proper provision for such debates and parliamentary processes.

From peace (1902) to peace (1996) When Nelson Mandela had to sign the new Cons� tu� on in 1996, he had not forgo� en the South African War.
The signing ceremony had to take place in public in Vereeniging: “Because it was there that we experienced the ﬁ rst betrayal of the Bri� sh and Boers.” Not only did it have to be in Vereeniging, but speciﬁ cally in Sharpeville, “because those who sacriﬁ ced must know that their struggle was not in vain and their eﬀ orts are not forgo� en”.
It was in Sharpeville, on 21 March 1960, that 69 people were gunned down by police and another 180 were injured when a peaceful protest against the dompas system went horribly wrong.

I was not surprised when 10 December was suggested as the date for the signing ceremony.

It was, a� er all, Interna� onal Human Rights day, and the day in 1948 when the Universal Declara� on had been accepted by the General Assembly of the United Na� ons.
On 10 December 1948, South Africa, under the leadership of the Na� onal Party, abstained when the General Assembly voted on the Universal Declara� on of Human Rights.

It took a UN commi� ee under the stewardship of Eleanor Roosevelt, widow of American president, Franklin D Roosevelt, two years to dra� this declara� on.

They had debated every word in the 30 clauses of the Declara� on and had voted 1400 � mes on it.
Thus the new Cons� tu� on was signed on 10 December 1996, because South Africa wanted to signal to the world that it was now, 48 years later, in step with the Universal Declara� on of Human Rights.

My par� cipa� on in that ceremony – standing next to Mandela and Ramaphosa and saying the ﬁ nal word of thanks – was also my last poli� cal func� on.

The Cons� tu� on was now the supreme law of the land.
Everyone would henceforth be equal before the law, and no one would be subjected to arbitrary governmental ac� on.

There was the further promise of responsive and accountable governance, which our courts would protect.

On Human Rights day, South Africans are called upon to remember the sacriﬁ ces made by so many to achieve democracy, and to know and demand their entrenched fundamental rights, thereby ensuring that the Cons� tu� on will always be a living document.
Reﬂ ections on the Bill of Rights – Theme Committee 4 25 Let’s not forget Mandela’s words, which on 10 December 1996 rang triumphantly across the George Thabe stadium: “Today, together as South Africans from all walks of life and from virtually every school of poli� cal thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny.” As with any cons� tu� on, our Cons� tu� on, and speciﬁ cally our Bill of Rights, reﬂ ects the history of our cons� tu� onal dispensa� on.
Let’s forge ahead I endorse Thomas Jeﬀ erson’s view that one genera� on cannot bind another, and that a cons� tu� on should therefore be reviewed every 19 years.

“If it be enforced longer, it is an act of force, and not of right.” South Africa has now had the beneﬁ t of 20 years’ experience of our Cons� tu� on in ac� on.

I believe that Parliament should not be afraid to elevate the status of the Sec� on 45(1) Commi� ee – the parliamentary commi� ee called upon to annually review the Cons� tu� on.
The moment has arrived to engage the na� on in a serious review process.

I have no doubt that the concept of cons� tu� onalism will stand the test of whatever vigorous debates such a revision may evoke.

Chairperson of the Consti tuti onal Assembly Cyril Ramaphosa and deputy chairperson Leon Wessels meet in mind and spirit.

Leon Wessels and Cyril Ramaphosa shake hands aft er the adopti on of the ﬁ nal consti tuti on on 11 October 1996.
Photos: With the permission of Hassen Ebrahim Leon Wessels watches negoti ati ons doing overti me.

The ti me is 3:33 a.m. 26 Reﬂ ections on the Bill of Rights – Theme Committee 4 ENVER SURTY Mohamed Enver Surty Minister of Basic Educa� on of the Republic of South Africa.

is the Deputy He was admi� ed as a� orney in 1977 and prac� sed as an a� orney and human rights lawyer in Rustenburg from 1977 un� l 1994.
Enver Surty was a provincial whip of the North- West province in the Senate during the � me when the 1996 Cons� tu� on was nego� ated.

He was a member of Theme Commi� ee 4 during this � me.

He simultaneously served in the select commi� ees of Jus� ce, Safety and Security, Local Government and the Rules Commi� ee of the Senate.

He also served as an MP in the Senate and its successor, the Na� onal Council of Provinces (NCOP).
He was deployed to the NCOP as Chief Whip from 1999 to 2004; and served as Deputy Minister of Educa� on from 29 April 2004 un� l 25 September 2008.

He was appointed as the Minister of Jus� ce and Cons� tu� onal Development from 25 September 2008 to 10 May 2009.

He has been Deputy Minister of Basic Educa� on of the Republic of South Africa since 11 May 2009.
Mr Surty obtained a Bachelor of Arts degree from the University of Durban-Westville in 1973, a Honours degree in Philosophy in 1974 and a BProc degree from UNISA in 1977.

He also completed an LLM degree in Cons� tu� onal Li� ga� on from the UWC in 1996 and a Postgraduate Cer� ﬁ cate in Higher Educa� on from the University of Pretoria.
Reﬂ ections on the Bill of Rights – Theme Committee 4 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 27 27 8 HUMAN DIGNITY AS THE PRE-EMINENT VALUE Enver Surty When the Union of South Africa was cons� tuted and established in 1910, it comprised four provinces, namely the Cape Province, Transvaal, the Orange Free State and Natal.

The Union represented the culmina� on of Anglo-Boer wars and a poli� cal se� lement that sought to promote unity and cohesion among the minority white colonisers.
Among the precondi� ons for crea� ng the Union of South Africa was the division of the legisla� ve, execu� ve and judicial authority among three of the four provinces.

Cape Town (in the former Cape Province) was allocated the seat of Parliament, the legisla� ve arm of government.

Bloemfontein (in the former Orange Free State) was the seat of the highest court, the Appeal Court, represen� ng the judicial arm, and Pretoria (in the former Transvaal) was the execu� ve and administra� ve seat of the state.
These were decisions made by the minority white colonisers, who had systema� cally created a state of their own and dispossessed 87% of black people of more than 85% of their land through stealth and forced removals.

These and other ac� ons denied black people, as indigenous and na� ve ci� zens of South Africa, their fundamental right to respect for their human dignity.
In 1994 South Africa became a cons� tu� onal state, commi� ed to crea� ng a non-racial, non-sexist, democra� c and united South Africa in which the Cons� tu� on became the supreme law of the land.
On 10 December 1996, Nelson Mandela promulgated the Cons� tu� on of 1996 into law and the Bill of Rights, enshrined in the cons� tu� on, became the cornerstone of the newly created democracy; the execu� ve, legisla� ve and judicial powers were bound by the Bill of Rights in the execu� on of their respec� ve responsibili� es.

The state had to respect, protect, promote and fulﬁ l the rights set out in the Bill of Rights.
Prior to 1994, the sovereignty of the State vested in Parliament where laws were passed to oppress, repress and suppress the vast majority of people.

Our sovereignty is now vested in the Cons� tu� on as the supreme law of the land.

The diﬀ erent arms of government remained unchanged in the new 1996 democra� c dispensa� on, but a Cons� tu� onal Court was established and later became the apex court in the country.
Signiﬁ cantly, it was established in Johannesburg on Johannesburg Hill (now called Cons� tu� on Hill), in the womb of the prison where poli� cal prisoners had been incarcerated, tortured and detained in terms of very repressive security legisla� on of the eigh� es.
It was indeed ironic that the seat of judicial power, which would serve as the custodian of the Cons� tu� on, including the Bill of Rights, emerged from the dungeons and bowels of despair of incarcerated poli� cal prisoners and was transformed into the highest court of the land as guarantor of our human dignity and freedom.

In Cape Town, Parliament is nestled among some old buildings which include an imposing church, all of which are monuments and heritage sites.
It sits at the foot of the majes� c Table Mountain, a renowned world heritage site.

Within the precincts of Parliament stand three signiﬁ cant buildings, each with a diﬀ erent façade, represen� ng the architectural era or epoch during which they were constructed.

The epochs are also represented in the chambers within.
e u l a v i t n e n m e - e r p e h t s a y t i n g i d n a m u H 282828 Reﬂ ections on the Bill of Rights – Theme Committee 4 On the southern part of the precinct stood the ﬁ rst legislature in South Africa.

A� er 1994 this became home to the Senate and its successor, the Na� onal Council of Provinces.

Senators represented both their mandated provincial interests and party poli� cal interests in the most interes� ng way.
Its members were elected by their respec� ve provincial legislatures to represent them in the second Chamber of Parliament, the Senate.

It housed many commi� ee rooms, among which was a rus� c chamber with red leather-bound seats used for plenary sessions.

The Senate, with its tall columns and wide concrete steps cascading down from the balcony, is linked to what was the “Volksraad” or Old Assembly.

This was the chamber where the most repressive laws that violated people’s dignity were passed.
Blacks were denied freedom of movement, expression and assembly, and their cultural and linguis� c rights were violated, all of which showed a lack of respect for the dignity of black people.

The chamber of the “Volksraad” or Na� onal Assembly was very similar to the chambers of the United Kingdom under the Westminster system.

The rows of benches on either side of the elevated Speaker’s seat were made up of green, leather-bound wooden benches replica� ng those in the House of Commons in England.
Opponents faced one another, and this layout was an invita� on to the kind of vibrant, robust debates that occur in the House of Commons in England.

Since 1994 the chamber has been used as a caucus facility of the ruling party.

Near the entrance to the Old Assembly was an open double-volume hall with beau� fully cra� ed ceilings.

It served as a recep� on area for members to socialise and converse during the adjournment of proceedings of the house, now referred to as the Old Assembly.
To its le� , tucked in the corner, is a passage which takes one to two oﬃ ces.

Beyond the two oﬃ ces is a huge oﬃ ce presently known as the oﬃ ce of the Chief Whip.

This is a powerful parliamentary oﬃ ce and this member is responsible for the discipline of all members of the ruling party, for the organisa� on and order of the programme in plenary, and for the well- being of the members of the ruling party.
These oﬃ ces were once used by the Heads of State of the Na� onal Party including BJ Vorster and PW Botha.

In a sense it con� nues to represent the heartbeat of the ruling party.

This large and expansive oﬃ ce had huge windows draped with long ﬂ owing ﬂ oral curtains, approximately ﬁ ve metres in length.

The solid oak desk was huge with matching side tables and neatly upholstered, matching an� que designer chairs, placed in a gentle arc in front of the table.
Opposite the table and between the entrance to the oﬃ ce and the hall, was a huge, glass-encased, solid imbuia bookcase wrapped around the corner from ceiling to ﬂ oor.

The voluminous bookcase was ﬁ lled with red and green leather-bound Hansards, a record of parliamentary proceedings of more than six decades, and a variety of books rela� ng to Parliament, its history, rules, guides and text books, in Afrikaans and English, among others.
In front of and near the huge bookcase stood a round wooden table with clawed feet and six comfortable upholstered chairs with arm rests.

These were intended for small mee� ngs with the oﬃ ce bearer.

The oﬃ ce had an interleading door to the le� of the desk which led to a massive round table conference room.

This round table had 20 comfortable high-backed cushioned chairs, draped in so� beige fabric.

Each chair had wheels for mobility.


On the northern side of the room was a chair with a slightly higher back and arm rests.

It was clear that it was designated for the chairperson.

The walls had recessed alcoves with wooden frames, two metres high and one metre wide.

There were more than 12 such frames.

Quite interes� ngly, when the ANC celebrated its centenary in 2012, the portraits of its 12 presidents ﬁ � ed neatly into the alcoves.
Reﬂ ections on the Bill of Rights – Theme Committee 4 29 The room is fully soundproof and, quite understandably, became the mee� ng place where the most sensi� ve poli� cal discussions or arguments occurred.

The adjoining building, more modern in appearance, with beau� ful marble � les and a modern entrance hall, is where the Na� onal Assembly is located.
Imposing and beau� ful, it has a huge chamber which accommodates 400 directly elected members of the Na� onal Assembly and during joint si� ngs included the 90 members of the Senate.

It is in this chamber that the Na� onal Assembly held its plenary sessions and where the Cons� tu� onal Assembly held its debates.

The Cons� tu� onal Assembly comprised 490 members.

Its task was to consider and adopt a Cons� tu� on within two years of 27 April 1994.

This was the � me agreed on by all poli� cal par� es.
The ﬁ nal Cons� tu� on, once adopted in the Cons� tu� onal Assembly, had to be cer� ﬁ ed by the Cons� tu� onal Court as having complied with the cons� tu� onal principles set out in the Interim Cons� tu� on.

Everybody was interested in the work of the Cons� tu� onal Assembly, the Management Commi� ee and the Theme Commi� ees that had been set up.

The Cons� tu� onal Assembly was chaired by Cyril Ramaphosa, who was also the Secretary General of the ANC.
He cut his poli� cal teeth as General Secretary of the Na� onal Union of Mineworkers (NUM), the strongest component of COSATU, which represented the vast majority of workers in all sectors – mining, health, educa� on and mines.
Ramaphosa is a qualiﬁ ed lawyer and highly skilled nego� ator, skills that he acquired as General Secretary of the NUM, where he had to nego� ate with highly paid HR managers of the mining sectors and lawyers bent on protec� ng the interest of the white monopoly capital of Anglo-American and other mining en� � es.

Extremely eloquent, he spoke in clear, measured tones and without a trace of anger or emo� on.
He played a big role as skilled nego� ator in the CODESA I and II process, where he, Valli Moosa and Roelf Meyer were regarded as the channel through which conten� ous issues would be processed, through nego� a� ons with the cadres of other poli� cal par� es.
He was highly regarded for his integrity, humility and the important so� skills that were cri� cal and necessary to navigate through the complex phase of nego� a� ng the Interim Cons� tu� on; his values would serve as a beacon for the new cons� tu� onal dispensa� on.

The Interim Cons� tu� on served as an important milestone in the roadmap of the new democra� c poli� cal dispensa� on of our country.
Cyril’s a� ributes of pa� ence, perseverance, self-control, and an analy� cal mind, and his ability to unpack complex issues and dis� ll the essence of the argument in clear and understandable terms, drew par� es closer.

He could achieve this because he could iden� fy areas of broad agreement and constantly suggest alterna� ves to contested or conten� ous areas.
Yet, in addi� on, people o� en forget the importance of having a sense of humour, as it is a cri� cal tool to reduce tension and create a light atmosphere that is conducive to conduc� ng tough nego� a� ons.

Cyril frequently used his good sense of humour as an instrument to reduce tension during debate and to provide an easy gateway to resolving disputes.
During the period 1994 to 1996, ins� tu� onally, the process of nego� a� ons took place at three levels: at the level of Theme Commi� ees, which were inclusive and included all par� es, at the second level of the Management Commi� ee, where senior members of poli� cal par� es would consider and adopt the reports of the Theme Commi� ees, and then the Plenary at the third level, where the Cons� tu� onal Assembly would debate, consider and adopt the reports of the Management Commi� ee.
The ANC also established a secretariat comprising senior members of the Na� onal Execu� ve Commi� ee (NEC), who were members of Parliament, designated 30 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 31 to oversee the cons� tu� on-making process and the nego� a� ons of the ANC from the various Theme Commi� ees.

This mechanism included the key nego� ators of the various themes or chapters of the Cons� tu� on.
I had, over � me, been assigned the responsibility to serve in the secretariat on behalf of Theme Commi� ee 4.

The secretariat would meet regularly, usually twice a week, to consider the reports before they went to the Management Commi� ee.

It would also consider any amendments that may have been ini� ated in the Management Commi� ee.

The mee� ng would be held in the Conference Room of the Oﬃ ce of the Chief Whip, occupied at that � me by Cyril Ramaphosa.
This venue was the locus of poli� cal authority among members of the ruling party in Parliament.

As the ﬁ nalisa� on of the Cons� tu� on was a priority and given its strategic importance and the scope of its applica� on, it was decided that Cyril Ramaphosa would occupy the tradi� onal oﬃ ce of the Chief Whip, as these oﬃ ces were most centrally located and had all the ameni� es in their immediate vicinity.
This also made him and his oﬃ ce accessible to all members of the Cons� tu� onal Assembly and the personnel of Parliament.

The ANC assigned me to Theme Commi� ee 4, ﬁ rst as observer, then as full member and ﬁ nally as nego� ator.

Theme Commi� ee 4 was responsible for the Chapter on Fundamental Rights.

The responsibility of dra� ing the submissions was assigned to me by Naledi Pandor, the chairperson of the ANC study group.
I was thus compelled to research widely and be conversant with the Interna� onal Bill of Rights, the Declara� on of the Rights of the Child, the African Charter on Human and Peoples’ Rights and Obliga� ons, domes� c cons� tu� ons of countries such as Germany, Canada, India, Uganda, the African Claims document and, most importantly, the Freedom Charter.

It was an extraordinary learning experience.


It was agreed that we should try to follow language used in the United Na� ons Declara� on of Human Rights as closely as possible so that we could make use of the invaluable jurisprudence that had evolved over decades.

The Interim Cons� tu� on had provided a useful framework to deal with civil and poli� cal rights, but had not incorporated any socio-economic rights.
The key values that underpinned the chapter on Fundamental Human Rights in the Interim Cons� tu� on were equality and freedom, and in the limita� on clause South Africa was described as an open democracy based on “equality” and “freedom”.

Respected poli� cal analysts such as Halton Cheadle, Firoz Cachalia and Hugh Corder correctly pointed out that the perspec� ve of the ANC was based on egalitarianism, always seeking rights that included but clearly went beyond the individual.
They noted that their approach had a strong social, community and humanitarian dimension which was largely inﬂ uenced by the African concept of ubuntu in terms of which you acquire your being through others – I am because you are.

The NP and the DP, on the other hand promoted and favoured the values of libertarianism that sought to promote individual rights and freedom in a laissez faire environment with minimal interference by the State.
Because of this ideological conﬂ ict, the values of “equality” and “freedom” were frequently juxtaposed.

We had made signiﬁ cant progress on the rights, except for the labour clause and educa� on clause, both of which remained conten� ous.

We had agreed to a� end to the preamble a� er the adop� on by the Cons� tu� onal Assembly of all or most of the rights.
Discussions on the preamble of the Bill of Rights had already commenced, and broad agreement was reached on the Bill of Rights as the cornerstone of our democracy, its binding eﬀ ect and the limita� on provisions.

It was suggested that the values of equality and freedom should be reaﬃ rmed as they were the values that informed the Interim Cons� tu� on but we s� ll sought an opportunity to include human dignity as a pre-eminent and overarching value.
Reﬂ ections on the Bill of Rights – Theme Committee 4 31 On a Wednesday in March 1996 at about 7:30, a� er a hard day’s work, I went to visit Cyril Ramaphosa as we were to discuss progress on the outstanding issues of the Bill of Rights.

Except for his private secretary, Donné Nicol, who always allowed me free and easy access to Mr Ramaphosa, the neighbouring oﬃ ces were empty.

I was told that Ramaphosa was in the company of the Minister of Jus� ce, Dullah Omar, and I could join them.
Dullah Omar wore a grey striped three-piece suit with a red � e. He was si� ng three seats away from Cyril Ramaphosa.

They appeared to be engaged in informal banter and by their posture it was clear that they were both very relaxed.

I had indicated to them that we were about to conclude the preamble.
We had already made the intended change making the Bill of Rights binding on the execu� ve, the legislature and the judiciary, whereas the Interim Cons� tu� on had bound only the execu� ve and the legislature to the Bill of Rights.

They were happy with this addi� on.

When I raised the issue of values, Dullah suggested the possibility of introducing “human dignity” as a value in the Bill of Rights.

Dullah was much older than both of us.


He was an astute and disciplined member of the ANC and a very experienced and competent lawyer, who possessed strong analy� cal skills.

Dullah was a gem to the comrades involved in the poli� cal struggle, as he would, without hesita� on, religiously defend all comrades who were either detained or charged for poli� cal ac� vi� es.
He was principled and to his own ﬁ nancial prejudice, spent � me and energy on what some� mes was protracted li� ga� on, frequently without remunera� on.

He had assisted many families in their visits to the poli� cal prisoners detained on Robben Island, among whom were Nelson Mandela, Ahmed Kathrada and Walter Sisulu.

In addi� on, as a prac� cing a� orney, he had provided ar� cles to scores of aspiring black a� orneys, who would otherwise not have been ar� cled by the many white a� orneys in the city.
The apartheid agents tried to poison him and he was always vulnerable to a� ack and threats of arrest by them.

This notwithstanding, he con� nued with the struggle for our freedom and libera� on, using the law as an instrument to procure the release and acqui� al of poli� cal prisoners.

In addi� on to being a human rights lawyer and a founding member of the Na� onal Democra� c Lawyers Associa� on, he served as a lawyer for the vast community of blacks, coloureds and Indians.
As a prac� cing lawyer, he understood how demeaning it was when people’s dignity was violated based on race.

He represented scores of clients aﬀ ected by the Group Areas Act, who were displaced, and clients who were detained incommunicado for expressing their belief in a free, democra� c and non-racial society.

He understood how black lawyers were discriminated against and were never given the opportunity to represent organs of State.
There were very few, if any, white corporates in the private sector willing to give opportuni� es to black lawyers – this was an aﬀ ront to their dignity and self-worth.

He understood how the denial of access to jus� ce amounted to the denial of the inherent dignity that each person should enjoy.

In prac� ce and in life, he had ﬁ rst-hand experience of how the dignity of blacks was trampled in the apartheid state.
Dullah had been involved in CODESA I and II with Cyril and understood the contesta� on between the ANC’s egalitarian ideology and opposed to the libertarian perspec� ve of the NP and DP.

Cyril had also experienced ﬁ rst-hand how thousands of workers were exploited in the mining industry.
He knew how their dignity was violated through exploita� on and unfair labour prac� ces, where they toiled without compassion deep in the bowels of the earth, in o� en unsafe and unhealthy environments, without receiving fair or adequate remunera� on.
He was aware of the plight of the mainly migrant workers, who were compelled to live in 32 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 33 unhealthy and overcrowded single quarter hostels, where their families were deprived the privilege of staying with them.

Respect for human dignity or human worth hardly had a place in the mining industry, and monopoly capital placed proﬁ t way above respect for human dignity and human life.
As a young boy Ramaphosa also experienced the plight of black farm workers and the poor quality of educa� on oﬀ ered to the African child and the limited access to ins� tu� ons of higher learning if you were black – even if you passed with dis� nc� on.

Being a facilitator of the nego� a� ons in CODESA I and II, he understood how equality was juxtaposed with freedom, and was aware of the arguments against incorpora� ng socio- economic rights.
He expressed his views succinctly as did Dullah and asked: “Now what do you think, Comrade Enver?” I was delighted.

We had ensured that when we dealt with the ﬁ nal Cons� tu� on, we conﬁ rmed the right to respect for human dignity.

When we submi� ed the ANC’s proposal regarding the right to respect for human dignity, we ensured that we added the word “inherent” to “dignity”, to clearly indicate the self-worth and self-respect imminent in each human being.
I had advised that it would best serve as an overarching value over all rights.

It would also be included in the limita� on clause and the interpreta� on clause and in so doing permeate all rights.

I also stated that Albert Camus, the philosopher, correctly pointed out in his seminal work, The rebel, that the common element between oppressor and oppressed, master and servant, is their dignity.

The concept became the basis for his existen� alist humanism.
Jean- Paul Sartre also recognised this in his famous essay “Existen� alism is a Humanism”.

In my opinion, however, none of the philosophers matched Immanuel Kant, who formulated a principle expressing respect for dignity that would echo through the ages, into South Africa’s Cons� tu� onal Court.
We had learnt from our successful endeavour to incorporate socio-economic rights that the understanding of the Na� onal Party and the Democra� c Party, in rela� on to their perspec� ve of freedom, was parochial and narrow.

All three of us present in Ramaphosa’s oﬃ ce that day were of the opinion that human dignity permeates all rights and should serve as an overarching and founda� onal value in interpre� ng rights, especially when rights were contested.
I endorsed their views and elaborated on my philosophical and legal reasons for suppor� ng the proposal.

Each of us were lawyers, each of us in varying degrees witnessed and experienced the denigra� on and dehumanising impact of apartheid on the dignity of blacks.

Our life experiences, professional perspec� ve and commitment to social jus� ce ensured that there was absolute convergence.

There was no debate, only an endorsement of the proposal.
Armed with this authority of our proposal that human dignity be included in the preamble, the founding provision, limita� on and interpreta� on clauses, we conﬁ dently submi� ed through the structures of the ruling party and then through the Theme Commi� ee, Management Commi� ee and Cons� tu� onal Assembly.

It would have been diﬃ cult for opposi� on par� es to argue against its inclusion, given its centrality in the struggle for our freedom and equality.
Given our painful history, it was self-evident that human dignity was a fundamental value that permeates all rights in the interpreta� on of rights.

There may be con� nued judicial specula� on about how, why and when it was included.

The reality is that the Dullah’s proposal in an informal conversa� on that human dignity be included as a value had, for me at least, opened the door for us to embed this pre-eminent Reﬂ ections on the Bill of Rights – Theme Committee 4 33 value in our Bill of Rights.
Cyril has always understood the full scope, nature and impact of its inclusion and authorised it, leaving it to us to push through the poli� cal formali� es.

In his opening address to Parliament, Nelson Mandela sought to give expression to the centrality of human dignity by demonstra� ng that, without the freedom from want and hunger, the dignity of the ci� zen would not be realised.
In so doing, he gave content and meaning to the no� on of human dignity and ensured that it straddled civil, poli� cal and socio- economic rights.

It is something we carried with us as we dealt with the right to equality and other socio-economic rights addressing the real needs of our ci� zens.

We are grateful that we could give expression to this very powerful statement by including human dignity as a pre- eminent value and right in our 1996 Cons� tu� on.
Given Dullah’s age, experience, sacriﬁ ce and wisdom, we could rightly argue that he was the founding father of the cons� tu� onal value of human dignity, as he had proﬀ ered the value to be included in the Bill of Rights at a � me when it could easily have been omi� ed in the race against � me to ﬁ nalise the Cons� tu� on within the prescribed two-year period.
In recognising this, the legi� mate social, poli� cal, economic, philosophical and legal arguments remain valid and support the ra� onale and basis for its inclusion; it may have appeared to be fortuitous but it certainly was not!
Enver Surty (left front), Mohseen Moosa (left back), Willie Hofmeyr (right back) and Collins Chabane Photo: With the permission of Hassen Ebrahim 34 Reﬂ ections on the Bill of Rights – Theme Committee 4 BRIGITTE MABANDLA Brigi� e Sylvia Mabandla has been the Chairperson of the Na� onal Orders Advisory Council since 2014 and a member of the High Level Legisla� ve Review Commi� ee, which reviews laws and policies introduced to Parliament, since 1994.
In January 2015, at a summit held in Addis Ababa, the APRM Forum Heads of State appointed her to the APR Panel of Eminent Persons.

She served as an MP of South Africa from 1994 to 2009, and as Minister of Jus� ce and Cons� tu� onal Development from 2004 to 2008.
Reﬂ ections on the Bill of Rights – Theme Committee 4 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 35 35 9 SWINGING THE PENDULUM Brigitt e Mabandla Commemora� ng the anniversary of our Cons� tu� on is an opportune � me to reﬂ ect on that momentous � me in our history when our country made the transi� on from hos� li� es to peace, and the commitment to nego� a� ons, the installa� on of a democra� c order, and the establishment of a Cons� tu� onal Assembly.
The ANC’s prepara� on for a democra� c dispensa� on can be traced to the resolu� ons of the Kabwe Conference in 1985, the most per� nent of which was the establishment of the ANC’s Legal and Cons� tu� onal Aﬀ airs Department led by Dr Zola Skweyiya.

From 1989 the commi� ee was tasked with developing policies for a democra� c, post-apartheid South Africa, with a par� cular focus on cons� tu� onal principles.
The late former President of the ANC, OR Tambo, played a leading role in the ANC’s conceptualisa� on of post-apartheid policy scenarios.

He believed that it was important for the post-apartheid Cons� tu� on to contain a reference to the Freedom Charter and the Africans’ Claims document.

According to him, the Cons� tu� on would need to enable transforma� on in society, and the state would have to intervene to improve the quality of life of the ci� zenry by providing basic services.
OR Tambo also led the dra� ing of the Harare Declara� on, which was adopted by the OAU (the predecessor of the AU).

The Harare Declara� on provided a framework to the ANC during the CODESA nego� a� ons.

In 1989 the ANC convened a conference on Women and the Cons� tu� on in Lusaka.

This resulted in the ANC’s formal endorsement of cons� tu� onalising women’s rights.
The strongest and most organised group was that of progressive women, who worked hard and in unity to achieve the gender dispensa� on we now have, notwithstanding the persistent poverty and violence women endure.

The women of South Africa must be commended for fundamentally changing South Africa’s course on women’s involvement in decision-making.

The ﬁ rst delega� ons to the nego� a� ons were some� mes male only, and most were male dominated.
When elec� ons took place in 1994, women were reasonably represented on the lists of all the par� es contes� ng elec� ons, which meant that women would con� nue to make an important contribu� on to the cons� tu� on-making process.

The 1988 Harare Conference on Children sought to galvanise the development of progressive child policies in South Africa from 1990 onwards.
In 1991 a Trust was established – the Na� onal Commi� ee for the Rights of the Child – to promote the rights of the child and advocate for progressive child policies.

The Trustees included senior members from the ANC, such as Gertrude Mashope, Dr Mathole Motshekga and Dr Zola Skweyiya, as well as world leading child specialists and ac� vists.

This commi� ee worked towards the inclusion of children’s rights in the Cons� tu� on.
Following the unbanning of the ANC in 1990, the ANC’s Cons� tu� onal Commi� ee established its oﬃ ces at the University of the Western Cape with a view to developing its policy and preparing its contribu� on to the new Cons� tu� on.

The members of the commi� ee were very senior in the legal profession, most of whom became judges of the Cons� tu� onal Court.
m u l u d n e p e h t g n i g n w S i 363636 Reﬂ ections on the Bill of Rights – Theme Committee 4 36 In 1991 outreach educa� onal programmes were launched as part of the prepara� ons for nego� a� ons.

The commi� ee’s ﬁ rst publica� on was a document outlining the ANC’s Cons� tu� onal Principles en� tled “What is a cons� tu� on?”.

This was to be followed by many other policy documents dealing with the land issue and proposals regarding the provinces, among other issues.
The most important publica� on, which signalled the leadership’s conﬁ dence in our approach to cons� tu� on making, was Ready to govern1.

South Africa remained in a very fragile state during the period from 1990 to 1994, hence many public commenters thought the elec� ons were rela� vely peaceful and thus a “miracle”.

I am convinced that the founda� on for na� on building was established during the period of the Cons� tu� onal Assembly.
The Cons� tu� onal Assembly was to be a vibrant forum for dialogue made up of people from all walks of life – many of whom never having engaged in serious ma� ers such as cons� tu� onal principles and the socio-economic and mul� -cultural challenges of our country.

The patriarchal mindset was o� en on display when gender-related ma� ers were being discussed, which resulted in a number of unsavoury incidents in those early days.
The Cons� tu� onal Assembly was divided into commi� ees, to which poli� cal par� es made their submissions.

Each commi� ee enjoyed the support of a technical team, and poli� cal par� es took responsibility for commi� ee outcomes.

It is important to note that delibera� ons in the commi� ees were very diﬃ cult, because par� cipants brought the posi� ons of their poli� cal par� es to the table.
Frequently the discussions held in commi� ees were not only extensive but also antagonis� c. I can recall diﬃ cult debates around socio-economic rights, equality, gender, race, aﬃ rma� ve ac� on, language, property, culture, the separa� on of powers, as well as provincial and local government.

The period from 1994 to 1996 was a � me of learning as we forged ahead with ﬁ nding common ground on the many cons� tu� onal issues we had to deal with.
I am convinced that it was during cons� tu� onal nego� a� ons that we learnt to work together, to be tolerant and less angry, to seek consensus and to put South Africa ﬁ rst.

Today we can talk of shared values, aﬃ rming that we are a cons� tu� onal state.

We of the ANC were conﬁ dent because of our pre-1994 prepara� ons; in fact a large part of today’s Cons� tu� on is conceptually and textually informed by the posi� ons of the ANC.
The success of the Cons� tu� onal Assembly can also be ascribed to the nego� a� ng and management skills of the then Chairperson, Cyril Ramaphosa, and Deputy Chairperson, Roelf Meyer.

It must be with pride and conﬁ dence in the future that we commemorate 20 years of the existence of our Cons� tu� on, because we were able to reach consensus across the par� es on the principles of our Cons� tu� on.
Our Cons� tu� on is proudly home-grown, and provides the context for a fundamental reconstruc� on of South Africa and for the eradica� on of the systemic legacy of apartheid and colonialism.

Our cons� tu� onal dispensa� on also enables us to ensure equitable distribu� on of wealth, land res� tu� on and the upli� ment of the economically disenfranchised.
Today South Africa is a cons� tu� onal state: the popula� on at large trusts the courts; the execu� ve and Parliament respect the ﬁ ndings of our courts; and the jurisprudence of the past 20 years is considered by courts the world over.

Separa� on of powers and the consolida� on of the powers within each of the three organs of state have been strengthened over the past decade, and this is an indica� on of a stable democracy.

1 Published by the Policy Unit of the African Na� onal Congress, 1992.
36 Reﬂ ections on the Bill of Rights – Theme Committee 4 37 Cyril Ramaphosa, Brigitt e Mabandla, and Thabo Mbeki, senior negoti ators for the ANC caucus, during a break at the bilateral between the ANC and the NP, 17–18 November 1993.

Photo: With the permission of Hassen Ebrahim 38 Reﬂ ections on the Bill of Rights – Theme Committee 4 RAY RADUE Mr Raymond Julius Radue matriculated at Dale College in King Williams Town in 1952.

He graduated with a BA LLB degree from the University of Cape Town in 1958.
He was admi� ed as an a� orney in Natal (now KwaZulu-Natal) in 1960 and later in the Eastern Cape, and prac� sed as an a� orney in King Williams Town from 1963 to 1987.

Raymond Radue was elected to the Cape Provincial Council in the general elec� on of 1981 and served un� l 1986, when the Council was disbanded.

He was then elected to Parliament in the 1987 general elec� on.
He con� nued as an MP un� l 1994, when he became a senator, and served in this capacity un� l 1999 when he re� red from ac� ve poli� cs.

While in Parliament he was appointed chairperson of the Jus� ce Commi� ee for two years un� l 1994.

He also served on the Senate Jus� ce Commi� ee.


While in the Senate, Mr Radue was elected to represent the Senate on the Judicial Service Commission and was also appointed by President Mandela to the Panel of nine who chose candidates for appointment to the Truth and Reconcilia� on Commission.

He also served as co-chairperson of Theme Commi� ee 4, which was tasked with Chapter 2 of the Bill of Rights of the new Cons� tu� on.
Reﬂ ections on the Bill of Rights – Theme Committee 4 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 39 39 10 TOILING FOR EQUALITY Ray Radue The 1993 Interim Cons� tu� on required the newly elected democra� c Parliament to draw up a new Cons� tu� on within a period of two years from the inaugura� on of the ﬁ rst Government of Na� onal Unity a� er the 1994 elec� on, and thus set the deadline as 10 May 1996.
While all the business of Parliament con� nued normally, the poli� cal par� es began to appoint their teams of cons� tu� onal nego� ators, accredi� ng individual MPs to various por� olios according to their qualiﬁ ca� ons and experience.

Working commi� ees were established to deal with various aspects of the proposed Cons� tu� on, and the Interim Cons� tu� on provided the guidelines for dra� ing the new document.
A huge public adver� sing campaign was launched, encouraging individual South Africans, NGOs, poli� cal par� es and all interested persons to make their submissions to the Cons� tu� onal Assembly.

Over two million wri� en submissions were received and processed.

It was a mammoth task to analyse and correlate all this informa� on into a diges� ble form and we as nego� ators were inundated with reams of paperwork, copies of submissions and documents.
Deputy President FW De Klerk appointed a team of nego� ators – under the leadership of Roelf Meyer, the former Minister of Cons� tu� onal Aﬀ airs.

This team began to meet on a regular basis to discuss strategy and to prepare the NP’s submission to the Cons� tu� onal Assembly.

I was assigned to Theme Commi� ee 4, the parliamentary working commi� ee charged with the important task of dra� ing Chapter 2 of the new Cons� tu� on, which was to enshrine the founda� on of our democracy, the Bill of Rights.
This working commi� ee was des� ned to ﬁ nalise an interna� onally acceptable bundle of universal human rights which would include the rights to life, property, health, work, educa� on, freedom of religion and speech, language, peace, personal security and all that these rights entailed.

Some of the most controversial and diﬃ cult issues were to emerge from these rights including abor� on, the death penalty, the right to strike and lockout, and mother-tongue educa� on, culture and language.
When the ﬁ rst mee� ng of this commi� ee took place, the workload appeared so onerous that the representa� ves of the various poli� cal par� es deemed it advisable that two chairpersons should share the burden of responsibility.

It was unanimously agreed that Membathisi Mphumzi Shepherd Mdladlana of the ANC and I would share the duty of chairing alterna� ve mee� ngs of the working commi� ee.
As it turned out, he and I struck up an excellent working rela� onship of mutual respect and we were able ul� mately to guide the commi� ee to consensus on most of the issues.

The equality clause was thoroughly debated.

We debated the issues of substan� ve equality, redress and unfair discrimina� on over many weeks.

We, a group of women and men, who were assigned the task of ﬁ nalising the equality clause, were seated in the dimly lit lounge on the ﬁ nal day of nego� a� ons.
We were Enver Surty, who was the lead nego� ator for the ANC, Willie Hofmeyr and Mohseen Moosa, also from the ANC, Dene Smuts from the Democra� c Party, and Sheila Camerer and myself from the Na� onal Party.

Our current Deputy President, Cyril Ramaphosa, also par� cipated to assist the process.

y t i l a u q e r o f g n i l i o T 404040 Reﬂ ections on the Bill of Rights – Theme Committee 4 We were all seated in the room from 10 pm a� er a long day’s work.
At 3 am, � red a� er nego� a� ons, we had established the ﬁ nal issue that had to be resolved.

Enver Surty had consistently argued for the horizontal applica� on of the non-discrimina� on provisions of the Bill of Rights.

We had originally argued for only its ver� cal applica� on (that is binding only on the State) and believed that legisla� on could deal with the horizontal provision.
Surty argued that what we were doing represented a break from our divided past, and that thousands of private ci� zens were responsible for discrimina� on.

If we were therefore serious about elimina� ng discrimina� on we would have to embed the protec� on in the Cons� tu� on.

We eventually agreed.

Moosa and Hofmeyr seemed to show some disbelief when we agreed to the principle.

And so it happened that we introduced into our cons� tu� on the horizontal applica� on of the equality clause.
We did so together and fully aware of the progressive step we had taken.

Towards the end of the negoti ati ons, meeti ngs went on into the night.

Here leading negoti ators agree on the horizontal applicati on of the equality clause.

It is 3 a.m., and despite their expressions, everyone’s pati ence is being tested to the utmost.
Photo: With the permission of Hassen Ebrahim Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 41 MAVIVI MYAKAYAKA- MANZINI the South African High Currently Commissioner in Windhoek, Namibia, Ms Myakayaka-Manzini has been a poli� cal ac� vist since a very young age.
She became involved in the ANC in 1975, and served on the ANC Na� onal Women’s Sec� on Secretariat from 1979 to 1990.

Prior to 1994, Ms Myakayaka-Manzini served in the leadership of the ANC Women’s League from 1990 to 1991.

During the period from 1999 to 2008, she was a member of the ANC Women’s League Na� onal Execu� ve Commi� ee as well as its Working Commi� ee.
the CODESA Ms Myakayaka-Manzini par� cipated nego� a� ons, focusing in par� cular on human rights, gender equality and ins� tu� ons suppor� ng democracy.

She also served in the Transi� onal Execu� ve council, which ushered in a democra� c South Africa, from 1993 to 1994. in Ms Myakayaka-Manzini was appointed as an MP in 1994, and was a member of the Management Commi� ee of the Cons� tu� onal Assembly.
She played a signiﬁ cant role in Theme Commi� ee 4, which was responsible for the dra� ing of the Bill of Rights, and also chaired the subcommi� ee that dealt with deﬁ ciencies in the dra� Cons� tu� on as iden� ﬁ ed by the Cons� tu� onal Court.

As a member of the Na� onal Execu� ve Commi� ee of the ANC from 1997 to 2007, she served in several capaci� es, including Head of Interna� onal Rela� ons.
From 2003 to 2008 she was the Deputy President of the ANC Women’s League, and in 2006 she served as the convener of the launch of the Progressive Women’s Movement.

Ms Myakayaka-Manzini obtained a BA degree in Poli� cal from the Science, Sociology and Development Studies University of Zambia (1979).

She also holds a master’s degree in Development Studies, specialising in women and development, from the Ins� tute of Social Studies in The Hague, Netherlands.
42 Reﬂ ections on the Bill of Rights – Theme Committee 4 11 WOMEN IN THE CONSTITUTION Mavivi Myakayaka-Manzini On this occasion marking the 20th anniversary of the adop� on of the ﬁ nal Cons� tu� on I would like to retrace the role I played as one of those who par� cipated in this process.

The role of women in the cons� tu� on-making process was a con� nua� on of the role they played in the struggle they waged throughout our history.
Many ar� cles have been wri� en on this subject, thus I will not elaborate here.

What informed our genera� on, tasked with con� nuing with that struggle in the wri� ng of the Cons� tu� on, was to learn from those who had gone before us.

We learnt that despite the exclusion of women from poli� cal organisa� ons and the banning of poli� cal organisa� ons in our country, women saw the need to organise themselves.
In 1912, when the African Na� ve Congress, later known as the African Na� onal Congress (ANC), was founded, women were not regarded as full members but as auxiliaries.

They could not be elected into posi� ons and were not allowed to vote on any decisions.

Thus women saw the need to establish their own organisa� on.

In 1913 they founded the Bantu Women’s League – later known as the Women’s League – under Charlo� e Maxeke (née Manye).
During the banning of the ANC and other poli� cal organisa� ons, women con� nued under diﬀ erent names to organise themselves.

In 1954, under the banner of the Federa� on of South African Women, the women adopted the Women’s Charter, and in 1992, as the Women’s Coali� on, they adopted the Charter for Women’s Equality.

These charters contained some of their visions for a democra� c, non-sexist and non-racial South Africa.
From these struggles we thus learnt about the importance of organising and uni� ng women, the need to speak with one voice, and also to ensure that we par� cipate directly in decision-making processes.

Our journey and the role I played in the wri� ng of the ﬁ nal democra� c Cons� tu� on can thus be traced from these struggles and the lessons drawn from them.

As women we were very clear about what we wanted in transforming our country.
We were not lawyers, but we were able to work with women in rural and urban areas.

Through a process of public par� cipa� on ini� ated by the Women’s Na� onal Coali� on and involving focus groups throughout the country, we interacted with lawyers, academics, poli� cal organisa� ons, churches, business women, students and young people.
When we were elected into the ﬁ rst democra� c Parliament, which served also as a Cons� tu� onal Assembly, we were part of the many delega� ons which travelled throughout the country to collect inputs from the people.

In Parliament we met as the Women’s Caucus.

Through this process we consolidated the voices of women.

In the Cons� tu� onal Assembly we directed our energies to those aspects women felt very strongly about.

We opened doors for women to par� cipate and speak as full delegates.
I remember at some stage the media referred to us as the “brooms� ck ladies”.

This did not deter us – we confronted patriarchy head-on at the cons� tu� onal nego� a� ons.

I remember some quarters argued that the equality clause should not be extended to rural women, who they claim were content with their subservient posi� on.

Yet women marched to the nego� a� ons from rural areas to demand equality.
Our posi� on at the nego� a� ons table was thus strengthened by the women’s movement and their ac� vi� es outside the Cons� tu� onal Assembly.

n o i t u t i t s n o C e h t n i n e m o W TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 4343 43 The Bill of Rights, which we referred to as the cornerstone and the soul of the Cons� tu� on, is one of the most important chapters in our Cons� tu� on.

Some of us were assigned to par� cipate in its dra� ing.
I am not a lawyer but a social scien� st specialising in women and development.

I believe that equality, freedom, development and peace are inseparable, and that women’s rights are human rights – thus issues rela� ng to women’s rights and women’s equality are very near to my heart.

I therefore saw my role in the process of dra� ing the Bill of Rights as that of ensuring that women’s rights were enshrined.
Armed with the experiences and the vision expressed in the two charters adopted by women, my mission was to ensure that I gave a voice to women in the discussions.

I focussed on those rights which we believed were vitally important to include in our Cons� tu� on, such as the right to life, equality, dignity, privacy, religion and security of the person, as well as socio- economic rights.

I have been requested to dedicate my contribu� on in this book to the right to security and control over one’s body.
Our point of departure in ensuring the inclusion of these rights in the Bill of Rights was that rights are indivisible, and that women’s rights were human rights.

Thus in dealing with the right to security and control over one’s body, we looked at how to prevent violence against women, detainment without trial, torture, inhumane and degrading treatment, as well as being used for medical research without one’s consent.
We also focussed on bodily integrity, the right to termina� on of pregnancy (reproduc� on), and the right to choice.

We argued that the right to life should be formulated in such a way that it did not make it impossible for women to terminate pregnancy, and simultaneously ensured an end to the death penalty.
It was not easy to deal with this ma� er, as the an� -choice lobby was very strong within most poli� cal par� es and other community and religious organisa� ons, which also had the right to make their representa� on in the public par� cipa� on process.

I remember the many horriﬁ c photos of incomplete abor� ons that we had to deal with, which conversely strengthened our argument that women should be allowed to terminate pregnancies safely.
At that � me, sta� s� cs showed that 300 000 women died annually from unsafe abor� ons.

Violence against women had been an important issue for us.

Once again, the sta� s� cs were shocking, indica� ng that South Africa showed one of the highest rates of violence against women, ranging from psychological abuse to murder.

A plethora of organisa� ons dealing with this issue assisted us greatly in our representa� on in the public par� cipa� on process.
Theme Commi� ee 4, which dealt with the Bill of Rights, received the bulk of the submissions which were sent to the Cons� tu� onal Assembly, where we had to process them.

We spent many sleepless nights as we nego� ated the Bill of Rights.

In addi� on, we had to secure mandates from our poli� cal organisa� ons.

Thus in addi� on to mee� ngs of the Cons� tu� onal Assembly we had to par� cipate in mee� ngs of our poli� cal structures, where we received our mandates and reported back.
In conclusion, I would like to remember some of the lessons we learnt from the cons� tu� on- wri� ng process – lessons that may be helpful in the implementa� on of the Cons� tu� on and in strengthening democracy in our country.

It was through dialogue that we as South Africans succeeded within two years to cra� our Cons� tu� on.

We learnt that we had to listen to diﬀ erent viewpoints and to be poli� cally tolerant.
The 34 Cons� tu� onal Principles which guided us played an important role in building consensus among the nego� a� ng par� es.

We did not have to agree on everything, but we had to learn to compromise by pu� ng our country and its people ﬁ rst.

Much s� ll needs to be done to fully implement the Bill of Rights – in par� cular the clause on Freedom and Security of the Person.
Despite the laws passed by our democra� c government and the campaigns that have been adopted, violence against women and children con� nue 44 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 45 in our homes and communi� es.

Violence and destruc� on of property s� ll occur during what should be peaceful demonstra� ons, and the tendency of our security forces is to meet violence with more violence.
Very li� le dialogue has been taking place on the challenges of poverty, inequality and unemployment we s� ll face, and on our poli� cal diﬀ erences.

We s� ll have to make our Cons� tu� on a living document respected by all.

I wish to thank the women of our country, who granted us the privilege of being part of this process.

Reﬂ ections on the Bill of Rights – Theme Committee 4 45 SHEILA MARGARET CAMERER Sheila Camerer was born in Cape Town on 15 December 1941.
She obtained her BA LLB degree at the University of Cape Town and a� er gradua� ng, worked as a prosecutor at the Johannesburg Magistrate’s Court.

In 1964, she was admi� ed as an advocate and, a� er marrying and having three children, as an a� orney in 1978.

From 1966 to 1975, she also worked as a journalist with the Financial Mail.

Beginning her ar� cles in 1976, she prac� sed as an a� orney un� l being elected to Parliament in 1987 and therea� er sporadically during her 22 years in Parliament.
Ms Camerer’s ﬁ rst elected oﬃ ce was that of Councillor in Johannesburg from 1982 to 1987 and Provincial Councillor for Rose� enville from 1984 to 1986.

She was elected MP for Rose� enville in Johannesburg for the NP in 1987.

Ms Camerer took part in the cons� tu� onal nego� a� ons from 1991 (when she served on CODESA’s Media Commi� ee) to 1996.

She also played a prominent role as a member of Working Group 2 of CODESA.
In March 1993 she was appointed as Deputy Minister of Jus� ce, in which capacity she chaired the Ad Hoc Commi� ee of the Nego� a� ng Council at the WTC on the Bill of Rights.

Subsequently she acted as the NP nego� ator on the Bill of Rights on Theme Commi� ee 4 of the Cons� tu� onal Assembly.

She again served as Deputy Minister of Jus� ce from March to June 1996, when the NP le� the Government of Na� onal Unity.

She was leader of the New NP in the Na� onal Assembly from 1997 un� l 1999.
She then helped to found the Democra� c Alliance and served as its ﬁ rst Caucus Chair in Parliament.

In March 2003, she rejoined the DA and served as DA Jus� ce Spokesperson.

Ms Camerer also served on various parliamentary por� olio commi� ees from 1994 to 2009, including that for Jus� ce and Cons� tu� onal Development and Foreign Aﬀ airs, as well as the Joint Commi� ee on Improvement of Quality of Life and Status of Women, and the Cons� tu� onal Review Commi� ee.
In 2008, President Thabo Mbeki appointed Ms Camerer as the South African Ambassador to Bulgaria, where she served with dis� nc� on from April 2009 un� l 2013.

Currently Ms Camerer is s� ll a prac� cing a� orney.

She serves on the DA’s Federal Legal Commission, and is a member of the Cons� tu� onal Panel of the FW De Klerk Founda� on.
In 2015, she was elected Chair of the South African Ins� tute of Interna� onal Aﬀ airs (Western Cape branch), is a Patron of Cape Town City Ballet, and serves on the boards and execu� ve commi� ees of several dis� nguished clubs and associa� ons.
46 Reﬂ ections on the Bill of Rights – Theme Committee 4 12 PARTY AND PRIVATE PERSPECTIVES Sheila Camerer Introduc� on When I was asked by the compilers of this commemora� ve booklet to give a Na� onal Party perspec� ve on the nego� a� on of the Bill of Rights in our Cons� tu� on, my reac� on was almost a sense of shock.

A� er all, I had helped to found the DA, was the party’s ﬁ rst caucus chair in Parliament, and was a DA Member of Parliament for many years therea� er.

I had moved on.
I had moved on.

But yes, back in a � me warp, during the ﬁ ve years I was involved in nego� a� ng our Cons� tu� on from November/December 1991, when CODESA got underway, un� l December 1996, when the ﬁ nal Cons� tu� on (in respect of which I was mostly concerned with the Bill of Rights) became law, I was a NAT, though professedly a verligte (liberal) one!
When former President De Klerk called me into his oﬃ ce in February 1993 and told me he was appoin� ng me Deputy Minister of Jus� ce with the speciﬁ c job of handling nego� a� ons on the Bill of Rights sec� on of the new Cons� tu� on at the mul� -party talks, he commented: “You’ll always thank me for this.

There is no greater task for a lawyer than helping to dra� a cons� tu� on.” And I do.

It was the most extraordinary experience of my life, and I feel privileged to have been part of the process.
Some recollec� ons of nego� a� ons around the Interim and ﬁ nal Cons� tu� on’s right to life One of the big, hard-fought issues in the Bill of Rights of the Interim Cons� tu� on was the right to life.

Both the ANC and the NP supported the right to life in their versions, but in the la� er’s case it was subject to the execu� on of a death sentence imposed in accordance with interna� onal law.
Nelson Mandela had pointed out that of the 490 or so people on death row at the start of nego� a� ons, 95% were black men.

It was an emo� onal issue, so the government imposed a moratorium on the death penalty.

In the midst of nego� a� ons the ruling NP decided to bring a mo� on to the Na� onal Assembly to li� the moratorium.

As Deputy Minister of Jus� ce, I would be expected to speak in the debate but I had been a lifelong aboli� onist.

What to do?
What to do?

I consulted President FW De Klerk, who simply told me to go out and make a ﬁ gh� ng speech against the death penalty, which I did.

The NP move never got oﬀ the ground – as FW had known all along – and the ANC version won the day.

In the ﬁ nal Cons� tu� on nego� a� ons the death penalty was a non-issue, as the newly appointed Cons� tu� onal Court very soon ruled that the formula� on of the right to life in the Interim Cons� tu� on ruled out any death penalty, and so it has remained.
Property rights The right to own property may be regarded as fundamental but its inclusion in the Bill of Rights of the Interim Cons� tu� on – and later in the Final Cons� tu� on – was equally controversial, the reasons being obvious to all: the massive imbalance in the distribu� on of land, property and wealth between diﬀ erent race groups.
It was therefore no surprise that the inclusion of a property rights clause and the form it took were among the hardest fought poli� cal ba� les at the World Trade s e v i t c e p s r e p e t a v i r p d n a y t r a P TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 4747 47 Centre (WTC) and later in the Cons� tu� onal Assembly.
Accordingly, at the WTC the issue was one of those (among other tricky issues such as customary law and the equality clause) referred by the Management Commi� ee of the nego� a� ng process to a small ad hoc commi� ee of the Nego� a� ng Council, which I chaired.

Among other members of the commi� ee were Penuel Maduna (ANC), Tony Leon (DP), Prof Halton Cheadle (SACP) and Chief Gwadiso of the Cape Tradi� onal Leaders.
The two major par� es came from very diﬀ erent direc� ons on the property rights clause, the NP government believing their view carried the weight of evidence and the authority of history (the French Declara� on of the rights of man in 1789, which were listed as “liberty, property, security and resistance to oppression”) and interna� onal law to support its case.

The DP supported its inclusion while the ANC at ﬁ rst rejected this.
There followed lengthy nego� a� ons over several weeks, steered by the ﬁ ve-person Technical Commi� ee, many of the redra� s being produced by my advisors from the State Law Advisor’s oﬃ ce, such as Gerrit Grove, who was one of the best legal dra� ers I have ever encountered.

The ANC ﬁ rst insisted that property rights be qualiﬁ ed by the right to res� tu� on of land.
Eventually the wording was resolved with the assistance of Prof Cheadle, who persuaded all par� es to accept certain principles to govern the clause, and to disconnect the issues of expropria� on of land by the state and the res� tu� on of land from one another.

Probably more legal opinions from senior counsel, law professors and experts were solicited on the wording of this clause, as it developed, than on any other in the Bill of Rights.
This did not change when the wording of the property rights clause in the ﬁ nal Cons� tu� on was nego� ated in the Cons� tu� onal Assembly.

As NP nego� ator, I also had the beneﬁ t of advice from top lawyers in the private sector and big business.

It was the last outstanding issue in the Bill of Rights to be se� led, literally in the ﬁ nal hours.

Its passage to comple� on was fraught with drama.


I recall when it came to be discussed by a troubleshoo� ng commi� ee, chaired by the then Cons� tu� onal Assembly Chair, now Deputy President, Cyril Ramaphosa, which met in the Chief Whip’s conference room in Parliament.

I was always very careful around Cyril because I was acutely aware of his acumen, his ruthless ability and his intelligence, having sat on the commi� ee he chaired at CODESA for several weeks.
But that day I rashly let my guard down and opined in connec� on with one sentence in the clause: It’s just the one li� le word “and” which stands between a good clause and breakdown (or some such).

Banging his ﬁ sts on the desk, Cyril stood up, saying, “then it’s breakdown!” and noisily lead his team out of the room.

Consterna� on on our side!

A� er some discussion Leon Wessels went a� er him to make peace, and eventually Cyril and his group returned.
He then led us all in song: “Give me a clause to build a dream on and my imagina� on ... etc.” I believe the sequence has been captured on ﬁ lm.

The “and” remained in the balance.

The property rights clause had s� ll not been resolved to our sa� sfac� on when the Cons� tu� onal Assembly posed for its team photo at the supposed end of the process.

A� erwards, Roelf Meyer asked me to give him a copy of the wording we were sugges� ng, as the then Deputy President Thabo Mbeki was asking for it.
I immediately did so, and the wording was ﬁ nally resolved.

Women, children and equality I cannot conclude without referring to the way women at the WTC stood together to ensure that women’s rights and gender equality in the equality clause were not qualiﬁ ed or watered down in any way.

Former Speaker Frene Ginwala led the way here.


I believe that if women nego� ators had not done so, they would not have been taken as seriously as they eventually were – by either of the main protagonists in the nego� a� ons – the ANC and the NP.

48 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 49 I remember very well how, during the nego� a� ons, the two par� es adjourned to an “island” situa� on at a bush camp to thrash out some key issues.
While the male nego� ators from the NP and the ANC had completely separate accommoda� on, the women from both par� es bunked down together.

I recall sharing a bedroom with Maria Ramos, while a female colleague shared with Baleka Mbete – the implica� on being that it wouldn’t really ma� er if the women shared secrets!
The ﬁ erce gender equality dispute at the WTC between women nego� ators and the tradi� onal leaders, led by Chief Gwadiso of the Cape Tradi� onal Leaders, was eventually referred to the Ad Hoc Commi� ee I chaired.

Both sides refused to give way, although at one point a “sunset clause” was put on the table, but even that was roundly rejected by the Chiefs.

Eventually their stance was voted down in the Nego� a� ng Council by a big majority.
In the Cons� tu� onal Assembly no such issues were raised seriously, and our work was mainly to extend the reach of the equality clause.

My colleagues in the nego� a� ons have kindly conﬁ rmed that I can claim credit for sugges� ng that “pregnancy” be included as one of the grounds of unfair discrimina� on to be outlawed.
Similarly the clause on children’s rights was expanded, and I am proud that my suggested inclusion of “degrada� on” as something children have a right to be protected against, survived the scru� ny of my fellow nego� ators.

Closing thoughts The cons� tu� onal nego� a� ng process was frene� c and took its toll, but also laid the founda� ons for mutual understanding between formerly divided poli� cians as to what would be best for our country.
As a metaphor for this, I remember the ﬁ nal mee� ng of our Chapter 2 (Bill of Rights) Commi� ee of the Cons� tu� onal Assembly in Parliament’s Old Assembly Chamber.

As the ﬁ nal “t” was crossed, Cyril put on the music, and I was suddenly swept oﬀ my feet and whirled around the ﬂ oor by Zwelenzima Vavi, erstwhile COSATU Secretary General!
For the past 20 years, all four provisions in the Bill of Rights to which my anecdotes relate – the right to life, property rights, equality (in all its aspects) and the rights of children – have served South Africa well, and their jus� ciability has been magniﬁ cently upheld by our courts.

Sheila Camerer, a negoti ator for the Nati onal Party.
Photo: With the permission of Hassen Ebrahim Reﬂ ections on the Bill of Rights – Theme Committee 4 49 MANGAQA ALBERT MNCWANGO Mr Mncwango was born on 19 August 1953 in Nongoma, KwaZulu-Natal.

He has been a member of the Inkatha Freedom Party (IFP) since its incep� on in 1975.

He served as a member of the IFP Youth Brigade in 1978 and was Regional Chairperson in Nongoma from 1978 to 1980.
In 1980, Mr Mncwango was an elected member of the Central Commi� ee of the IFP, and he has been serving on the IFP Na� onal Council since1990.

In addi� on, he has been the Na� onal Organiser of the IFP for 14 years.

Mr Mncwango was a member of the IFP delega� on at CODESA I and II, held at Kempton Park, to nego� ate the new Cons� tu� on for the Republic of South Africa, and therea� er also represented the IFP in the Cons� tu� onal Assembly.
As a respected poli� cian, Mr Mncwango represented the IFP as a member of Theme Commi� ee 4, which dealt with the Bill of Rights.

He especially dealt with the right to unarmed and peaceful demonstra� on together with the late Mr Ben Skosana (MP), whose contribu� ons were invaluable.

Mr Mncwango has been an MP since 1994, represen� ng the IFP.

In addi� on, he is a member of the IFP Na� onal Execu� ve Commi� ee (NEC).

Mr Mncwango is currently Na� onal Deputy Chairperson of the Inkatha Freedom Party.
50 Reﬂ ections on the Bill of Rights – Theme Committee 4 13 NON-VIOLENCE, TOLERANCE AND PEACEFUL PROTEST Mangaqa Albert Mncwango The Inkatha Freedom Party (IFP) was founded upon the advice of Dr Kenneth Kaunda, the former President of Zambia, with the approval and mandate of Mr OR Tambo, who was the President of the ANC at the � me.

He advised Prince Mangosuthu Buthelezi to establish a membership-based cultural organisa� on when black poli� cal organisa� ons were banned in South Africa.
The IFP was founded on the ideals of the founding fathers of the ANC established in 1912.

Thus Prince Buthelezi worked closely with leaders such as OR Tambo, Nelson Mandela and a host of other dis� nguished ANC leaders un� l the London mee� ng of 1979.

At that mee� ng, there was an ideological split regarding which strategy to apply in order to achieve South Africa’s libera� on.

The ANC, as the government-in-wai� ng, were resolute in their pursuit of complete centralisa� on of power at the top.
They were less concerned with the details, such as whether the new South Africa should be a unitary or a federal state, preferring to a� end to the speciﬁ cs a� er elec� ons, when the power to make decisions will have shi� ed in their favour.

This saw the ANC stalling the cons� tu� onal process.

But the horriﬁ c Bisho Massacre in the homeland of Ciskei, in September 1992, brought them back to the nego� a� ng table.
The ANC had elected to follow the path of “making South Africa ungovernable” as one of its primary strategies to force the then ruling NP to relinquish power and enter nego� a� ons to establish a democra� c South Africa.

This strategy of ungovernability included the use of violence as a tool towards achieving the breakdown of the rule of law.

All op� ons were on the table and protests o� en became violent.
It may be persuasively argued that the use of violent protest placed severe pressure on the nego� ators of the Cons� tu� on to reach consensus while swaying nego� a� ons in favour of the ANC.

The IFP has a legacy of walking the narrow path; the path of sacriﬁ ce, integrity, principled ac� on and peace.

The principle of non-violence was laid as a cornerstone of the IFP, and it never abandoned this principle, even under intense pressure from the ANC’s mission in exile.
This caused an ideological ri� between the IFP and the ANC, which saw them part ways.

While the IFP pursued libera� on and democracy with equal fervour, it refused to engage in the armed struggle and juxtaposed the ANC’s call for violence, in� mida� on and civil unrest with a call for non-violent resistance.

IFP supporters were said to be brandishing “dangerous weapons” even when peacefully protes� ng.
These cultural accoutrements are, however, a proud part of Zulu culture and are symbolic in the journey of young boys to manhood.

Together with the oral handing down of Zulu history, military successes, and memories of great poli� cal and military leaders, these symbolic items inculcate a sense of honour, discipline and esprit de corps that men carry with them all the days of their lives.
Understandably, the image of crowds of people carrying s� cks and shields has always proved irresis� ble to the media, and even today, whenever IFP events are broadcast, the camera hones in on the small groups d n a e c n a r e l o t , e c n e l o i v - n o N t s e t o r p l u f e c a e p TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 5151 51 of amabutho or tradi� onal regiments, o� en without showing the vast crowds who hold nothing but pamphlets.
There is a clear diﬀ erence, however, when IFP members protest.

The characterising features are always discipline, order and non-violence.

By the � me South Africa reached the nego� a� ng table at CODESA, the IFP already had almost two decades of experience in governance and poli� cal leadership.

These were freedom ﬁ ghters who understood the power of good administra� on, and knew how to wield policy rather than weapons to achieve victory.
Because of this, the IFP today has a legacy that few, if any, can match.

The IFP con� nually demanded the release of Nelson Mandela and other poli� cal prisoners, and the unbanning of poli� cal par� es, as a ﬁ rm prerequisite to any nego� a� ons.

In so doing, the IFP brought the ANC to the nego� a� ng table.
The IFP, under the close direc� ve of its leader, Prince Mangosuthu Buthelezi, was ably represented at the nego� a� ng table by, among others, Mr Ben Skosana, Mr Walter Felgate, Dr Mario Oriani-Ambrosini and me.

We tabled proposals for a full Bill of Rights, the crea� on of a cons� tu� onal court, the control of the execu� ve by independent organs of state, the recogni� on of indigenous and customary law, a federal state with provinces, and many other aspects of a modern cons� tu� on.
History should rightly remember the contribu� on of the late Mr Ben Skosana and Dr Mario Oriani-Ambrosini, who were two of the most skilled diploma� c, poli� cal and legal minds in the country at the � me.

South Africa owes them a great deal of gra� tude for the many freedoms and privileges we enjoy today.
Within this context and the predomina� ng culture of “Might is Right”, which was forcefully bred into the country’s struggle for libera� on, the right to peaceful and unarmed demonstra� on enshrined in Chapter 2 has suﬀ ered, even decades into South Africa’s ﬂ edgling democracy.
It is thus understandable that protests, even in a democra� c South Africa, o� en descend into violence, as the belief persists that the quickest way to obtain the full and undivided a� en� on of government is to burn something or hurt someone.

In the second decade of democracy, a rapid surge in protests occurred, with thousands of protests taking place every year.

Addi� onal legisla� on therefore became necessary in order to regulate and control these demonstra� ons.
The Regula� on of Gatherings Act 205 of 1993 came into force and eﬀ ect.
This Act principally states that, “Every person has the right to assemble with other persons and to express his views on any ma� er freely in public and to enjoy the protec� on of the State while doing so.” This is aligned correctly with Sec� on 17 of the Cons� tu� on, which states that, “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present pe� � ons.” Nevertheless, violence con� nues to characterise protests.
The most glaring display of violent protest came with the #FeesMustFall movement, as students across university campuses resorted to damaging infrastructure, property and vehicles, clashing with police and private security guards.

The driving force was frustra� on, as the long-standing promise of free ter� ary educa� on remained unfulﬁ lled by Government.
By and large, the use of violence in protest ac� on can be a� ributed to the growing dissa� sfac� on ordinary South Africans feel on a daily basis because of service delivery failure, large-scale corrup� on in the public service sector, a stagnant economy, massive unemployment and a growing divide between the “haves” and “have-nots”.
52 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 53 In part though, it must also be a� ributed to the culture of violence that was allowed to mature during the country’s struggle for libera� on.

In this sense we are the vic� ms of our own libera� on.

We must all therefore take collec� ve responsibility and together strive to bring an end to this culture of violence as a means of protest in our country.

Our Cons� tu� on is our guide.


It points towards peace and prosperity for all South Africans, if its tenets are only followed.

In this respect our poli� cal leaders have a solemn duty, obliga� on and non-nego� able, non-derogable mandate to act as leaders, to take the high road, to promote social cohesion, non-violence, tolerance and peaceful protest ac� on.

It is far too easy and in fact illustrates a shallowness of leadership ability when our senior poli� cians play the race card.
Populist poli� cs is societally regressive.

It creates demagogues and destroys na� ons.

It must not be allowed to take hold and ﬂ ourish.

Twenty years into democracy we as South Africans have a duty to the country and to one another to bridge the divide and forge a strong, uniﬁ ed na� on in which everyone is respec� ul of the rights of others.

Our Bill of Rights clearly illustrates the path for us all to follow.

We dare not fail in this task.


Reﬂ ections on the Bill of Rights – Theme Committee 4 53 GRACE NALEDI MANDISA PANDOR Her exile during the period from 1961 to 1984 gave Ms Pandor’s educa� on an interna� onal ﬂ avour.

She holds a BA from the University of Botswana and Swaziland and an MA in Educa� on from the University of London.

In 1992 she studied for a Diploma in Higher Educa� on, Administra� on and Leadership at Bryn Mawr in the USA.
In 1997, while serving as an MP, she received an MA in Linguis� cs from Stellenbosch University, and a diploma in Leadership in Development from the Kennedy School of Government at Harvard.

Ms Pandor became an MP in 1994 and has amassed impressive experience in posi� ons of public oﬃ ce, including that of Deputy Chief Whip of the ANC in the Na� onal Assembly (1995–1998), Deputy Chairperson of the Na� onal Council of Provinces (NCOP) in 1998, and Chairperson of the NCOP for the period from 1999 to 2004.
Her experience in educa� on policy and planning made her a welcome appointment as South Africa’s Minister of Educa� on in 2004 – a posi� on she held un� l 2009.

In May 2009, she was appointed Minister of Science and Technology, and in October 2012 Minister of Home Aﬀ airs.

Following South Africa’s ﬁ � h democra� c elec� ons, she was reappointed Minister of Science and Technology in May 2014.
She has been awarded honourary doctorates by the Cape Peninsula University of Technology and Stellenbosch University.

54 Reﬂ ections on the Bill of Rights – Theme Committee 4 14 SHAPING THE FUTURE THROUGH OUR RIGHTS Naledi Pandor South Africa adopted its much admired Cons� tu� on 20 years ago.

It seems surreal to recall that process today.

We were so enthusias� c, so young in governance, so idealis� c, so convinced our presence in Parliament would alter South Africa radically.
We have altered South Africa, but not to the degree we imagined then.

Whenever I reﬂ ect on those heady days, I recall excitement, dedica� on to the task at hand, and hard work.

I also remember camaraderie, sleepless nights, and early mornings.

Our Theme Commi� ee 4 had a crucial role to play in the cons� tu� on-wri� ng process, and we tackled the challenge with enthusiasm and commitment.

Theme Commi� ee 4 dealt with fundamental rights.


The mandate and work of the Commi� ee was guided by Cons� tu� onal Principle II, which states: Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liber� es, which shall be provided for and protected by entrenched and jus� ciable provisions in the Cons� tu� on, which shall be dra� ed a� er having given due considera� on to inter alia the fundamental rights contained in Chapter Three of the Cons� tu� on.
I look back today and recall two gentlemen I o� en spo� ed in our mee� ng rooms – I later learnt they were Arthur Chaskalson and George Bizos.

They quietly observed, said nothing, and interacted with MPs during breaks.

The ANC complement to Theme Commi� ee 4 was a formidable team which included Membathisi Mphumzi Shepherd Mdladlana (our convener), Brigi� e Mabandla, Mavivi Myakayaka and Enver Surty.

From � me to � me, Willie Hofmeyr and Johnny de Lange assisted us.
I was concerned that some of us were perhaps rather inexperienced to take responsibility for such a cri� cal chapter of the Cons� tu� on.

A Bill of Rights was what I felt the struggle had been all about.

Our senior leaders – Zola Skweyiya, Penuel Maduna, Cyril Ramaphosa and Kader Asmal – were there to guide and support us, but we were expected to lead the process on behalf of the ANC and to ensure that our submissions would be incorporated into the ﬁ nal dra� .
A number of the opposi� on party members were also seasoned stalwarts – they were familiar with parliamentary procedures and always ready with detailed arguments on each clause.

I recall Tony Leon leading the submissions of the Democra� c Party, ﬁ rmly supported by Dene Smuts, who was also involved in other theme commi� ees.

The ACDP had Louis Green, joined from � me to � me by Rev Kenneth Meshoe.

The PAC was present as well, as were all other represented par� es.
We set about our du� es in a very methodical fashion.

A� er all, the ANC had been considering rights since 1946, and had dra� ed the Freedom Charter of 1955 and the Harare Declara� on of 1989.
Our caucus was briefed on these founda� on documents TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 55 55 5555 and provided with copies of the document Ready to govern1, which had been prepared by our leaders in exile to guide the ANC once it became the governing party in South Africa.

We also held workshops with experts and poli� cians from other countries, such as Canada and Germany.
We o� en became bogged down in speciﬁ c sec� ons or formula� ons as we worked.

For example, we were unsure about when to use “every person” or “every ci� zen”, and about which rights were universal and which, if any, should be limited to ci� zens.

As all can see in our Bill of Rights, we chose inclusion rather than excep� on.

Ours is a Bill of Rights for all.


When the Theme Commi� ee began wri� ng the Bill of Rights, we had to ensure that we paid a� en� on to the Cons� tu� onal Principles that formed part of South Africa’s ﬁ nal nego� ated se� lement.

In addi� on the document we produced had to reﬂ ect the rights contained in the Universal Declara� on of Human Rights and other interna� onal instruments that enshrine human rights globally.
Con� nually having to refer to such seminal documents in shaping our Bill of Rights meant hours of reading, discussion and debate.

Our leaders, Kader Asmal and Brigi� e Mabandla, were an invaluable resource, because they had interna� onal experience and had been at the core of our struggle.

Enver Surty, an experienced human rights lawyer and seasoned ac� vist, played a cri� cal role in our team.
He inves� gated interna� onal case law, provided us with accessible summaries, and worked at night to write ANC submissions, which Mdladlana and I would add to every morning before our mee� ngs.

Membathisi Mphumzi Shepherd Mdladlana, as the then President of the South African Democra� c Teachers Union (SADTU) and a former school principal, was a tough taskmaster.

We had to be prepared for each mee� ng, bring wri� en submissions and present them with conﬁ dence.
He made us an� cipate and prepare for opposi� on party arguments and made me chief presenter, supported when I faltered by Enver Surty and Mavivi Myakayaka.

We sailed through civil and poli� cal rights, and agreed quickly on the rights to vote and to protest, as well as the rights to form and join organisa� ons.

It seemed compara� vely straigh� orward un� l we began dra� ing the right to life and the right to privacy clauses.
The ACDP were adamant that we should include capital punishment or formulate the clause to allow for the death penalty.

The ANC were completely against that, however, and we marshalled arguments based on our experience of the injus� ce of the death penalty for us and for the formerly oppressed people of South Africa.

Fierce debates ensued in many mee� ngs.

We were greatly assisted by the Canadian Cons� tu� on and the very useful, well documented studies it was founded on.
The right to privacy was also debated, due to its associa� on with women’s right to ensure their bodily security.

I think the most useful backing came from the public consulta� ve mee� ngs held by Cons� tu� onal Assembly oﬃ cials with communi� es across South Africa.

I recall a public mee� ng held in the Eastern Cape, which was reported on in a television broadcast.
Several rural African women stood up to argue against the death penalty, and as I listened to their compassion for others, their fears, I was convinced that we could never enshrine the death penalty in our Cons� tu� on.

There were surprises in the process too.

Leaders of academia came to our commi� ee mee� ngs to argue for academic freedom under the right to freedom of expression.

They convinced us.

I recall my horror at the resistance mounted to the equality clause.
We had probably naively assumed this would enjoy immediate support in a post-apartheid South Africa.

It became clear that equality was not the issue; the ac� on that would be needed to redress inequality 56 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 57 and the provision for aﬃ rma� ve ac� on proposed by the new entrants to Parliament was the problem.

Our commi� ee was forward-looking too.


We agreed to include second-genera� on socio- economic rights such as educa� on, health and housing; we went further and included third- genera� on rights to the environment and sustainability.

Our commi� ee beneﬁ � ed hugely from the many advisors who gave us the beneﬁ t of their knowledge and experience.

For example, I recall Willie Hofmeyr almost single-handedly wri� ng the clauses on the treatment of detained persons as well as the limita� ons clause.
Theme Commi� ee 4 was a signiﬁ cant learning experience for all of us.

I hope posterity will agree that, all in all, the Commi� ee made a signiﬁ cant contribu� on to crea� ng a be� er, more humane South Africa.

Willie Hofmeyr (left ), and Naledi Pandor (right) of the ANC.

Photo: With the permission of Hassen Ebrahim 1 Published by the Policy Unit of the African Na� onal Congress, 1992.
Reﬂ ections on the Bill of Rights – Theme Committee 4 57 15 FREEDOM OF EXPRESSION – WITH OR WITHOUT BOUNDARIES Enver Surty While researching Freedom of Expression in the First Amendment of the American Cons� tu� on; in the German Cons� tu� on, with its unfortunate history of genocide based on race (and religion); and the African Charter of Peoples’ Rights and Obliga� ons, I discovered that there were instances where the right was internally qualiﬁ ed or limited, to ensure that it is not used as an instrument to incite violence through hate speech (verbal or wri� en).
We had learnt that the absolute or unmi� gated right could be used for racial, gender or religious propaganda to incite violence.

In South Africa, as in many other developed and developing countries, much of the media resided in private poli� cally par� san hands, who cared less about the quality of the lives of the poor, and sought, in the main, to perpetuate the status quo for their private proﬁ t or poli� cal gain.
More harmful was the prac� ce by demagogues and dictators, who would use hate speech as an instrument to ins� gate violence and conﬂ ict and organisa� ons that would use pla� orms and the media for the incitement of hatred.

To achieve this, they became skilled propagandists, who could destroy any individual or en� ty that sought to oppose their capitalist tendencies or programmes.

The ownership of the media and its editorial control was, a� er all, in their hands.
Race and class were inseparably linked in South Africa.

In many parts of the world, women were subjugated because of patriarchal tendencies, based on culture and tradi� on.

These prac� ces sought to exclude them from the mainstream of the economy and poli� cs.
In the apartheid era, religious beliefs were o� en perverted for private and illegi� mate reasons (separate churches for separate race groups, conformity and compliance by the white popula� on who condoned the demeaning acts of the apartheid regime).

As we were set the task of ﬁ nalising the Cons� tu� on, conﬂ ict and war based on religion and race loomed in Bosnia and Herzegovina, Pales� ne, Kashmir, Sudan and Rwanda.
Given our painful history of exclusion based on race and gender, we knew a qualiﬁ er in terms of these two categories would be less conten� ous than the one based on religion.

Yet the reali� es of wars and genocide through hatred and religious intolerance were o� en fuelled by vested groups, who consciously manipulated the masses by crea� ng ar� ﬁ cial religious hos� li� es to cause conﬂ ict and division for their own nefarious ends.
In so doing, they thrived and beneﬁ ted from the conﬂ ict through the supply and sale of arms and the provision of security.

The proposal tabled at the Study Group was accepted and supported by the chairperson, Naledi Pandor, and we submi� ed it to the Technical Commi� ee.

I had least expected the response that followed.

A group of senior members of the ANC, who were also NEC members of the ANC, objected to the proposed ANC amendment.
At short no� ce, we were summoned to a mee� ng in Cape Town to argue our proposal and convince the following ﬁ ve oﬃ cials of the ANC, namely Nelson Mandela, Thabo Mbeki, Cyril Ramaphosa, Cheryl Carolus and Mendi Msimang, as well as other NEC members of the ANC.
When I was requested by the chairperson of the Study Group to a� end the mee� ng, I realised that it would be a challenging task, as those r o h t i w – 585858 Reﬂ ections on the Bill of Rights – Theme Committee 4 who were opposed, were NEC members who had signiﬁ cant poli� cal clout and gravitas.

Cde Naledi Pandor assured me of her uns� n� ng support.
I was reasonably conﬁ dent that with her oratory and persuasive skills, we may yet succeed.

The Deputy President at the � me, Thabo Mbeki, indicated the purpose of the mee� ng and the view of certain members that it was not appropriate to amend the provision in the Interim Cons� tu� on, which read as follows: Every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media, and the freedom of ar� s� c crea� vity and scien� ﬁ c research.
With the following addi� on, we proposed: the right in subsec� on (1) does not extend to- propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that (2) a) b) c) cons� tutes incitement to cause harm.

We were given the task to address the oﬃ cials.


I referred to our racial past, the patriarchal nature of our society, the oppressive burden on our women, par� cularly black, rural women who experience the triple jeopardy of race, gender and poverty.

I spoke about the Founding Provisions of our Cons� tu� on, our historic past and our conscious and conscien� ous responsibility to protect this commitment.
I then sketched out the religious conﬂ icts as they emerged in Rwanda, Pales� ne, Bosnia Herzegovina and Sudan, arguing that religious hate speech could have the cataly� c eﬀ ect of causing violence, conﬂ ict and war.

I thought I had done enough.

I was somewhat surprised that while many appeared to accept the legi� macy of an internal qualiﬁ er a� er my submission, there were some comrades who were not en� rely convinced about the need to include religion in the internal qualiﬁ er.
An NEC member in the gathering who was ac� vely involved in the nego� a� ons of the Interim Cons� tu� on argued that there was no interna� onal precedent for an internal limita� on or qualiﬁ er.

Another member interjected and contested almost everything I said at the � me of my presenta� on, with remarks such as “What do you know?” and “Where do you get that from, really now!” These mu� erings and interjec� ons, I thought, were intended to distract me.
I later learnt that this member had a proclivity to mu� er in dissent, irrespec� ve of who spoke, and it was neither personal nor malicious.

He sat behind me as I spoke and made sure that his words were not audible enough for the oﬃ cials to hear – very clever indeed – and I was curiously interested in his aversion to hate speech based on religion, when these reali� es were real and had resulted in genocide.
Was it against the spirit of a secular cons� tu� on, which in any event prohibits discrimina� on based on religion, I pondered.

When a sugges� on was made that communism should be included, it opened another perspec� ve.

Asmal, Pahad and Nzimande were among the objectors to an internal qualiﬁ er to the freedom of expression; for diﬀ erent legi� mate reasons.

Communism had been targeted in the past, but in an open and free society it was unlikely that cons� tu� onal protec� on was required.
Moreover, the alliance of the SACP with the ANC made its central role in our democra� c dispensa� on clear.

Furthermore, the ideology was certain to be protected, given its eminent role in the libera� on struggle.

I was invited to respond and provided the mee� ng with the interna� onal instruments that limited freedom of expression based on prohibi� ng hate speech under special circumstances.
The mee� ng was sa� sﬁ ed that the qualiﬁ ers were found in the African Charter, the German Cons� tu� on and the European Declara� on of Human Rights, among other instruments.

Reﬂ ections on the Bill of Rights – Theme Committee 4 59 Naledi Pandor was invited to speak.
She spoke with such great clarity and eloquence, embellishing the arguments I had raised most cogently, emphasising our commitment to non-sexism and non-racialism, focusing on the sensi� vi� es of religious beliefs and the commitment to peace and the search for unity in diversity.

She also alluded to the emo� onal responses to religious hate speech and our commitment to respect and celebrate our diversity.
She paid par� cular a� en� on to the role religious leaders across all faiths had played in the struggle for our freedom, and how important it was to respect sensi� vi� es in rela� on to gender, race, ethnicity and religion.

Importantly, among other things, she emphasised that speech must cons� tute incitement to cause harm before it could be limited.

The oﬃ cials were spellbound by her eloquence and lucid presenta� on.
I saw how they were being gently swayed by the content and the melodious voice of Naledi Pandor.

A� er she spoke, President Nelson Mandela responded with words to the following eﬀ ect: “Since when are we opposed to religion?

Our foremost leaders in the ANC were religious leaders.

The ANC always respected and protected religion.

Has something changed?

If indeed we are saying that religion had no place in the struggle and will be of no consequence in our democra� c society, please let me know.
If there is such a view then let us have no qualiﬁ ca� on, not even on the basis of race or gender.

I thought the arguments presented for the qualiﬁ ers were very clear with some requirements before the limita� on can be introduced.

It appears as if the objec� on is not about a qualiﬁ er in terms of race or gender, but only on the basis of religion.

This I cannot fathom or understand.

Either we include religion with race and gender, or we have no internal qualiﬁ er at all.
Personally, I am rather surprised at the narrow opposi� on.” He was calm and composed, but asser� ve.

It almost came across as a direc� ve and I believe it was deemed as such.

There was no further argument, and the amendment was accepted.

I was relieved and grateful.


I was once again impressed with the ANC’s ability to have robust internal debates on its proposals, and the discipline of accep� ng the ﬁ nal decision, irrespec� ve of whether the original posi� on of the member diﬀ ered from the majority view.

Armed with the conﬁ dence of a mandate, we were able to argue persuasively for the amendment in Theme Commi� ee 4 and the Management Commi� ee.
When the right was going to be debated in the Na� onal Assembly, I noted Minister Asmal, our cons� tu� onal expert, waving vigorously to draw my a� en� on.

He beckoned, I approached.

I imagined that he would s� ll be angry that I had challenged some of the views and arguments of those opposed to the internal qualiﬁ er.

I moved cau� ously towards him, expec� ng him to unleash his anger, but he asked the following: “I am deba� ng in twenty-ﬁ ve minutes.

Give me just ﬁ ve points, to support the amendment.
Precise and concise.

I do not want an essay – a summary will do.” I was surprised, having expected a more hos� le interac� on.

I swi� ly agreed to his request.

Therea� er, he addressed the Cons� tu� onal Assembly with his customary eloquence.

His speech was based en� rely on the ﬁ ve points which he used as pillars in support of the amendment.

I was astounded by his openness to new ideas and his complete support for a proposal that he appeared to have opposed.
It is this generous and inclusive approach that inspired our work.

No person would ordinarily believe that my comrade had, a few days ago, argued vociferously against the amendment.

Such was the discipline of cadres of the movement.

I was proud to be part of such a dynamic organisa� on.

This engagement formed the basis of a very sound and exci� ng friendship with Cde Asmal, un� l his demise.
60 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 61 Even though we had won the argument, his passion and belief in arguing for what one believed in with convic� on is something I carried with me in the future organisa� onal tasks that I had to carry out.

It was once stated by Hall in The friends of Voltaire, “I disapprove of what you say, but I will defend to the death your right to say it!” (The friends of Voltaire, p 199).
Willie Hofmeyr (left ) and Enver Surty (right).

Photo: With the permission of Hassen Ebrahim Reﬂ ections on the Bill of Rights – Theme Committee 4 61 HALTON CHEADLE Halton Cheadle is an a� orney with 38 years’ experience.

His areas of exper� se include law, administra� ve law, and municipal law, and he has experience in the ﬁ elds of commercial law and sports law.
law, cons� tu� onal labour He also has extensive experience in legisla� ve dra� ing and has par� cipated in the dra� ing of the Bill of Rights in the ﬁ nal Cons� tu� on, as a member of the Technical Commi� ee on the Bill of Rights: Theme Commi� ee 4, various labour statutes including the Labour Rela� ons Act 1995, the Na� onal Economic Development and Labour Council Act 1994, and the Mine Health and Safety Act 1996.
He has also par� cipated in the dra� ing of other laws such as the Special Pensions Bill, the Electoral Bill, and the Public Administra� on Management Bill, 2014.

In addi� on, he has dra� ed labour laws as part of labour law reform in Botswana, Lesotho, Mozambique, Namibia, Swaziland, Tanzania, Nigeria and Zimbabwe.

Prof Cheadle has also been involved as author and editor of various books and journal ar� cles on labour and cons� tu� onal law.
He has been an ac� ng judge in the High Court and the Labour Court and has experience as an arbitrator.

Prof Cheadle is the ﬁ rst South African to sit on the ILO Commi� ee of Experts on the Applica� on of Conven� ons and Recommenda� ons (CEACR), Interna� onal Labour Organisa� on, Geneva.

He is a Professor Emeritus at the University of Cape Town.

He is currently a Prac� sing A� orney at the Bradley Conradie Halton Cheadle law ﬁ rm.
He was the founding partner of the human rights law ﬁ rm, Cheadle, Thompson & Haysom.

62 Reﬂ ections on the Bill of Rights – Theme Committee 4 16 A NEW LABOUR DISPENSATION Halton Cheadle Introduc� on Sec� on 23 of the Cons� tu� on a� racted controversy.

It was ﬁ ercely debated both in public and in Theme Commi� ee 4.

Two sets of objec� ons were lodged in the cer� ﬁ ca� on of the Cons� tu� on, one of which was upheld by the Cons� tu� onal Court.
The controversial nature of the cluster of rights arises from its dis� nc� ve nature – not always immediately apparent.

Firstly, these rights, unlike most other rights in the Bill of Rights, had already been ensured by the � me the cons� tu� onal nego� a� ons began.

Workers and unions had, through struggle and pressure, secured a ra� of basic individual protec� ons through legisla� on, collec� ve bargaining and the jurisprudence of the industrial court.
Trade unions could bargain collec� vely and strike in support of collec� ve bargaining demands.

Secondly, again unlike most other rights, it has at its core the right to bargain collec� vely and to strike to exercise power by causing economic harm.

It is a right, as Bob Hepple has said, one of means rather than ends.

Thirdly, cons� tu� onalising labour rights is not without its dangers for worker and trade union interests.
Although it guaranteed the hard-fought rights against unjus� ﬁ ed legisla� ve or execu� ve interven� on, it also had the capacity to subvert a core principle of modern labour law, namely the autonomy of collec� ve labour rela� ons through the judicialisa� on of those rela� ons.

I always took the view that only one labour right needed to be entrenched: the right to strike.
Right to fair labour prac� ces The concept of unfair labour prac� ce was introduced into our law as a result of recommenda� ons made by the Wiehahn Commission in the late 1980s.

The reasoning for its introduc� on was not auspicious.

It was introduced to give white workers a legal remedy against employers who took advantage of the labour law reforms proposed by the Commission, which included the removal of job reserva� on.
Those reforms permi� ed trade unions that organised African workers to register, to belong to industrial councils and to access the dispute resolu� on systems established by the Act.

These privileges had long been the exclusive preserve of white, coloured and Indian workers.
It is one of the ironies of apartheid that a right to fair labour prac� ces introduced to protect white workers became the statutory source for the judicial elabora� on of the right to job security for all workers, par� cularly unskilled black workers.

Its cons� tu� onal genesis is similar.


During the nego� a� ons that led up to the adop� on of the Interim Cons� tu� on, white public service workers were anxious that, once an elected black government came to power, they would be systema� cally dismissed, and accordingly demanded guarantees.

One such guarantee was to include the right to fair labour prac� ces as a cons� tu� onal principle for inclusion in the ﬁ nal Cons� tu� on.
Although sourced and driven by a narrow sec� onal interest, its acceptance as a cons� tu� onal principle was premised on the need for a stable transi� on and the universality of its applica� on to all workers and employers, regardless of race.

n o i t a s n e p s i d r u o b a l w e n A TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 6363 63 The right accordingly found its way into Sec� on 23 by way of cons� tu� onal principle XX.
But it seemed an odd right to include in a bill of rights – its content seemed open-ended and its governing principle of fairness without compass.
These concerns, raised during the debates on the sec� on, dissipated as the Theme Commi� ee developed its approach to the ar� cula� on between cons� tu� onally entrenched rights and the legal system, namely that cons� tu� onal rights are required to be given eﬀ ect to by legisla� on, common law or customary law; that the primary func� on of a bill of rights is to test the cons� tu� onality of the law giving eﬀ ect to the right; and that if there is no law giving eﬀ ect to the right, then the courts are obliged to develop the common law to do so.
Since labour law is generally legislated, the entrenchment of fair labour prac� ces was the natural preserve of Parliament (rather than the courts).

The determina� on of fairness ﬂ ows from the democra� c processes of legisla� on by an elected government.
And this is how the Cons� tu� onal Court subsequently viewed the right to fair labour prac� ces: the concept of fair labour prac� ce “must be given content by the legislature and therea� er le� to gather meaning … from the decisions of the specialist tribunals” guided by “domes� c and interna� onal experience”.1 Right to form and join trade unions and employer organisa� ons The simple formula� on of this right belies its complexity.

The right encapsulates both individual and collec� ve rights.
This right is as much about the freedom to associate as it is about the freedom of the associa� on to pursue its objec� ves.

This right guarantees an individual’s right to join a trade union.

It cons� tutes a commitment to a voluntarist collec� ve bargaining system.

It is a shield against legisla� ve and execu� ve interference in trade union aﬀ airs and in the ma� ers of employer organisa� ons.
It provides protec� on against employers’ vic� misa� on of trade union members and against interference in trade union aﬀ airs.

And at its core lies one of the most controversial debates in modern cons� tu� onal and labour law: the agency shop and the closed shop.
There was li� le debate over these elements concerning the right to associate, and the dra� ing of the text was aided by language used in the Interna� onal Labour Organisa� on (ILO) Conven� on 87 on Freedom of Associa� on, which entrenched not only the individual’s right to form and join trade unions and employer organisa� ons, but the right of those associa� ons to determine “their own administra� on, programmes and ac� vi� es” – language that had been glossed extensively by the two supervisory bodies of the ILO.
The right to strike The right to strike has a dis� nc� ve nature and is diﬀ erent from other rights.

Although, like some human rights, it entails the right to exercise power, such as the right to protest, to form poli� cal par� es, or to exercise freedom of expression, par� cularly that of the media, it diﬀ ers markedly from those cons� tu� onal rights because in the exercise of this right, it is permi� ed to deliberately inﬂ ict harm – economic harm.
Because the right to strike had already been won, the cri� cal issues before the Commi� ee were the limita� ons on the right.

It was again part of the Theme Commi� ee’s developing vision of the role of an express limita� ons clause that allowed for a much simpler formula� on of rights.

No right is absolute – it is always subject to jus� ﬁ able limita� on.

It was accordingly not necessary to expressly qualify the right to strike in the text.
Limita� ons could be covered in the limita� ons clause informed by the work of the ILO supervisory bodies on the right to strike, which has permi� ed limita� ons in a na� onal crisis, essen� al services, minimum services, purely poli� cal strikes, and so forth.
64 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 65 The lockout Although COSATU and the other trade union federa� ons that were consulted in the nego� a� on of the Interim Cons� tu� on opposed the cons� tu� onalising of the lockout as a ma� er of principle, they agreed to its inclusion in the Interim Cons� tu� on.

This was done in order to again placing obstacles in the way of the expedi� ous conclusion of an Interim Cons� tu� on.
Its exclusion from the ﬁ nal Cons� tu� on was controversial, both in Theme Commi� ee 4 and in the public debate.

The exclusion of lockout was, however, not merely the result of trade union and poli� cal pressure but had a principled basis.

Strikes and lockouts are not symmetrical.


As the Cons� tu� onal Court recognised in the First Cer� ﬁ ca� on Judgement, the right to lockout is not equivalent to the right to strike: Collec� ve bargaining is based on the recogni� on of the fact that employers enjoy greater social and economic power than individual workers.

Workers therefore need to act in concert to provide them collec� vely with suﬃ cient power to bargain eﬀ ec� vely with employers.
Workers exercise collec� ve power primarily through the mechanism of strike ac� on.

In theory, employers, on the other hand, may exercise power against workers through a range of weapons, such as dismissal, the employment of alterna� ve or replacement labour, the unilateral implementa� on of new terms and condi� ons of employment, and the exclusion of workers from the workplace (the last of these being generally called a lockout).
Business South Africa and the Free Market Founda� on with other employers and employer groups objected to the exclusion of the lockout in the ﬁ nal Cons� tu� on.

Their objec� ons were not upheld, precisely for the reasons contained in the above quote from the judgement.
The right to engage in collec� ve bargaining In the Interim Cons� tu� on, the right was simply stated as: “Workers and employers have the right to organise and bargain collec� vely.” The ﬁ rst diﬃ culty with that text was that it imported a cons� tu� onal duty to bargain whereas ILO Conven� on 98 on Collec� ve Bargaining requires voluntary collec� ve bargaining, limi� ng the government’s role to promo� ng voluntary collec� ve bargaining.
The second diﬃ culty was that the right was directed to workers and employers and not to trade unions and employer organisa� ons.

The third diﬃ culty was that a duty to bargain could only be eﬀ ec� ve at the level of the employer and not at the level of the economic sector – the historical and preferred level of collec� ve bargaining.

What the Theme Commi� ee wished to avoid was to commit the society to a regime of workplace bargaining.
To avoid these diﬃ cul� es, the Theme Commi� ee (on my advice) agreed (with reserva� ons) on the following text: “Trade unions and employer associa� ons have the right … to bargain collec� vely”.
The Cons� tu� onal Court upheld the objec� on because Cons� tu� onal Principle XXVIII on which the ﬁ nal text had to be based said, “the right of employers … to engage in collec� ve bargaining.” The formula� on in the text submi� ed to the Cons� tu� onal Court only entrenched the right of employer associa� ons and not employers themselves.

The Court upheld the objec� on and referred the text back for rewording.
The wording of the Cons� tu� onal Principle itself provided the answer by recognising the individual employer’s right to par� cipate in collec� ve bargaining and by formula� ng the right as a freedom reinforced by the qualiﬁ ca� on that the collec� ve bargaining could be regulated by legisla� on.
While the qualiﬁ ca� on appears to state the obvious, its func� on is to emphasise the dis� nc� on between the right to engage in collec� ve bargaining (the freedom to bargain) and the ins� tu� ons and prac� ces of collec� ve bargaining.

It delineates the ambit of the right, by sta� ng that the forms, ins� tu� ons and prac� ces of collec� ve bargaining are not coextensive Reﬂ ections on the Bill of Rights – Theme Committee 4 65 with the right.
Collec� ve bargaining cons� tutes a complex of rights and du� es, processes and ins� tu� ons.

The object of the qualiﬁ ca� on is to provide a clear indica� on that the inclusion of a right to engage in collec� ve bargaining is not an invita� on to cons� tu� onalise the content of collec� ve labour law.

Halton Cheadle (le� ), Sandy Liebenberg (centre), and Igna� us Rautenbach (right) fulﬁ lled a vital role as technical advisors on the Bill of Rights.
Photo: With the permission of Hassen Ebrahim 1 Na� onal Educa� on Health and Allied Workers Union v University of Cape Town and Others 2003 (2) BCLR 154 (CC) at para 34.

The fact that the principal focus of developing fair labour prac� ce jurisprudence lies with the legislature and the specialist courts does not mean that the Cons� tu� onal Court has no role in the determina� on of fair labour prac� ces.
It has a supervisory role to ensure that the legisla� on giving eﬀ ect to the right is “properly interpreted and applied” (at para 35).

66 Reﬂ ections on the Bill of Rights – Theme Committee 4 BALEKA MBETE Baleka Mbete has served as a member of the ANC for more than four decades in diﬀ erent capaci� es and sectors, including leadership and mobilisa� on of women, cultural work, cons� tu� on making and parliamentary democracy.
A� er returning from 15 years in exile, Mbete became the ﬁ rst Secretary General of the ANC Women’s League when the ANC was unbanned.

When the ANC Women’s League formed the Progressive Women’s Movement of South Africa in 2006, she was elected as its Na� onal Convenor.

Interim Cons� tu� on and the The nego� a� ons for the Cons� tu� onal Assembly turned out to be a mul� -layered opportunity to hammer out appropriate provisions based on the Freedom Charter.
Mbete, one of the ANC nego� ators, formed part of those who ensured that the new Cons� tu� on catered for the poor and for gender sensi� vity.

Appointed by the late President Nelson Mandela in 1996 as Deputy Speaker of the new Parliament (depu� sing Speaker Ginwala), she has played an important role in establishing a new parliamentary sector and culture.
She spearheaded the formula� on of the FMPPLA (the Financial Management of Parliament and Provincial Legislatures Act), which guides the en� re legisla� ve sector.

Of all the tasks entrusted to her by the ANC over � me, none was as great an honour as that of driving the ANC Centennial Celebra� ons in 2012 in her capacity as na� onal chairperson.

Centenary legacy work con� nues under the ANC’s Na� onal Archives Commi� ee chaired by Mbete.
Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 67 67 17 PROPERTY RIGHTS RECREATED Baleka Mbete I had no appe� te for the property clause inserted in the Interim Cons� tu� on given our history of dispossession and depriva� on.

I held the view that there should not be a property clause in the ﬁ nal Cons� tu� on.
My ﬁ rm view was that the property clause unduly protected capital and prevented the State from taking appropriate steps in the reform, res� tu� on and redistribu� on of land.

Theme Commi� ee 6, which I chaired, was charged with the task of dealing with the Land Commission, among other things.
It was for this reason that the debates of Theme Commi� ee 4 on the property clause and the provisions of Sec� on 26 in the Interim Cons� tu� on, which dealt with the right to free economic ac� vity, was of interest to me.

I would join the debates in Theme Commi� ee 4 and ul� mately we drew the provisions of land reform and res� tu� on into the provisions of Sec� on 25 of the Bill of Rights, namely the property clause.
All members in the ANC Study Group held similar views, but also recognised that, given the elaborate protec� on of property rights in the Interim Cons� tu� on, it was very unlikely that the other par� es would agree to its removal.

We had to examine whether there was a possibility or poten� al for dilu� ng the property clause by ensuring, promo� ng and permi� ng land reform, res� tu� on and redistribu� on, allowing expropria� on in the public interest and na� onalising water and mineral resources.
This we had to do to ensure that, among other things, we would give expression to the commitment contained in the Freedom Charter with regard to land, water and mineral resources.

We also had to negate the no� on of expropria� on based on the willing buyer, willing seller principle and the narrow principle of public purposes.
In addi� on to the compromised provisions of the property clause in the Interim Cons� tu� on, tucked away among the rights was Sec� on 26(1), which gave everybody the right to free economic ac� vi� es.

Sec� on 26(2) placed the onus on any measures that may limit this right, including the right to social jus� ce, on the State.

The State ﬁ rst had prove that it was jus� ﬁ able in an open and democra� c society.
The possibility of legal challenges to all ac� ons, including fair labour prac� ces and aﬃ rma� ve ac� on, loomed large.

Also of concern was that the transforma� on of the judiciary regarding “mindset” in par� cular, had only just begun.

Our research helped us to iden� fy a provision in the German Cons� tu� on which we were able to argue had a similar eﬀ ect as S26 in our Cons� tu� on.

This was not the case, of course, but we had persuaded the other par� es in debate.
Cyril Ramaphosa, Chairperson of the Cons� tu� onal Assembly, would from � me to � me chair the sessions of Theme Commi� ee 4 to help resolve conten� ous issues.

As chairperson, he obviously had to be impar� al, preside over and facilitate the robust debates that would ensue and endeavour to achieve “broad consensus”.

As chairperson he never descended into the poli� cal arena, but he was able to read between the lines and to understand what we sought to do.
Once agreement had been reached among all poli� cal par� es that in the ﬁ nal Cons� tu� on the right would allow carrying on a trade, occupa� on or profession that could be regulated by law, he appeared pleased.

The burden of proof was removed and there were no internal qualiﬁ ers to the right, other than possible regula� on through legisla� on.

The pendulum had swung the other way.


Enver Surty and I were d e t a e r c e r s t h g i r y t r e p o r P 686868 Reﬂ ections on the Bill of Rights – Theme Committee 4 pleased to receive a note of recogni� on and encouragement from Cyril at the end of the session.
It was encouraging how research and cogent arguments helped the ruling party to have its proposal carried, strongly supported by Naledi Pandor, Mavivi Manzini, Enver Surty, Willie Hofmeyr, Brigi� e Mabandla and by me in argument and counter-argument.

The Interim Cons� tu� on guaranteed all rights vested in property.

This in eﬀ ect meant that all leases, debentures, shares and any form of equity associated with property (corporeal and incorporeal) would be protected.
The ruling party was successful in removing that clause in the ﬁ nal Cons� tu� on, and replacing it with a provision that prevented arbitrary depriva� on of property.

We had also no� ced that the expropria� on of land clause provided for several factors including public interest.

Public interest was only a factor in determining compensa� on, but did not form a ground or a basis for expropria� on.

This, in our view, was ﬂ awed.


We had discussed this ma� er with the chairperson of the Study Group, Naledi Pandor, an astute academic and poli� cian, and she agreed that we should expand the basis for compensa� on to go beyond “public purposes”.

We had discussed how public purposes, both in terms of domes� c and interna� onal jurisprudence, were very narrow and limited, and did not include radical land reform, res� tu� on and redistribu� on.
The secretariat of the ANC also supported the deﬁ ni� on of “public interest” in the Cons� tu� on.

A charter for rights in a free South Africa was proposed by ZK Ma� hews in 1953.

He was a renowned ac� vist and academic and the paternal grandfather of Naledi Pandor.

Naledi had fully embraced the Freedom Charter and was very keen that its aspira� ons with regard to property should ﬁ nd expression in the Bill of Rights.
Theme Commi� ee 4, tasked with ﬁ nalising the Bill of Rights, was blessed with the technical support it received from Halton Cheadle and Sandy Liebenberg.

Halton was an expert in labour law, a brilliant academic and lawyer, and an extraordinary researcher and analyst.

He also remained true throughout to the aspira� ons of the ANC.

His partner, Fink Haysom, equally brilliant, was the legal advisor to President Nelson Mandela.
Sandy Liebenberg was a young, hardworking, intelligent researcher, academic and gender ac� vist.

She was industrious and me� culous in her work and a good writer.

Ismail Mahomed, a brilliant advocate who became the ﬁ rst Chief Jus� ce in our democra� c dispensa� on, was an expert on the Group Areas Act: he and members of his community were directly aﬀ ected by this notorious and repugnant Act, which aﬀ ected the lives of blacks in general and Africans in par� cular.
Enver Surty had read his resourceful literature and consulted with other legal experts on behalf of the ruling party.

It was clear that the grounds for expropria� on based only on “public purposes” were narrow.

This in terms of the Interim Cons� tu� on was the sole basis for expropria� on.

Public interest, once deﬁ ned, was broad enough to include land reform, res� tu� on and redistribu� on.

Enver Surty, Willie Hofmeyr, Naledi Pandor and I had discussed this with Halton Cheadle.
When the issue of public purpose and public interest was raised with Halton, he immediately understood its implica� ons.

He later proposed something most unusual and interes� ng by deﬁ ning “public interest” in the context of the property clause; this included the elements of land res� tu� on and redistribu� on as part of achieving equality and redressing the inequali� es of the past.

We took the decision that water and minerals should be deﬁ ned as na� onal resources.
The technical team led by Halton was cau� ous in ensuring that the water and mineral resources of the country were vested in the State − we had created the cons� tu� onal gateway to ves� ng water and mineral rights in the hands of the State and na� onalisa� on was a cons� tu� onal reality.

Reﬂ ections on the Bill of Rights – Theme Committee 4 69 Yet, there were scep� cs.
Thabo Mbeki, at that � me Deputy President of the country and the ruling party, was directed to seek assurance from Willie Hofmeyr and Enver Surty regarding this aspect.

They were in Cyril’s oﬃ ce and provided the assurance, with convic� on.

Indeed the new laws pertaining to water, minerals and energy had passed the cons� tu� onal muster and na� onalisa� on was a reality.
The legisla� on to amend the Expropria� on Act is now ﬁ nalised, but the debates about proper� es expropriated and acquired at market value con� nue when, in fact, this is in conﬂ ict with the Cons� tu� on.

Quite strangely the issue of compensa� on had not been referred to the Land Claims Court because of the delay in ﬁ nalising the Expropria� on Act.
We are cau� ously op� mis� c that land reform, res� tu� on and redistribu� on will be accelerated with the enactment of the relevant legisla� on, and that this will help realise the aspira� ons of the Freedom Charter, which inspired hope and served as the framework for our Bill of Rights.
70 Reﬂ ections on the Bill of Rights – Theme Committee 4 SANDRA LIEBENBERG Professor Sandra Liebenberg obtained a BA LLB from the University of Cape Town, an LLM from Essex and an LLD from the University of the Witwatersrand.

She is the HF Oppenheimer Chair in Human Rights Law and a dis� nguished professor in the Faculty of Law at the University of Stellenbosch.

She is also co-director of the faculty’s Socio-Economic Rights and Administra� ve Jus� ce Research Project (SERAJ).
She previously served as chairperson of the Technical Commi� ee advising the Cons� tu� onal Assembly on the dra� ing of the Bill of Rights in the 1996 Cons� tu� on.

She serves on the editorial boards of a number of human rights law journals in South Africa and abroad, as well as on the board of directors of a number of na� onal and interna� onal NGOs ac� ve in the ﬁ eld of socio- economic rights.
She has for a number of years been involved in suppor� ng public interest li� ga� on and advocacy in the area of socio-economic rights.

She has published widely in the ﬁ eld of socio-economic rights, and is the author of the monograph, Socio-economic rights: adjudicati on under a transformati ve consti tuti on (2010, Juta) and co-editor of Law and poverty: perspecti ves from South Africa and beyond (2011, Juta).
In December 2014, she received the University of Stellenbosch’s top accolade, a chancellor’s award, for her contribu� on to community service in the ﬁ eld of law in South Africa.

In 2016 she was elected to the United Na� ons Commi� ee on Economic, Social and Cultural Rights, the body that supervises compliance by states with their obliga� ons under the Interna� onal Covenant on Economic, Social and Cultural Rights of 1966.
Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 71 71 18 EMBEDDING SOCIO-ECONOMIC RIGHTS Sandra Liebenberg The 1996 Cons� tu� on represented a decisive break from both the poli� cal system underpinning racist minority rule and the legal system of parliamentary sovereignty.
As Sec� on 7 of the Cons� tu� on proclaims, an entrenched and judicially enforceable Bill of Rights, aﬃ rming the democracy values of human dignity, equality and freedom, was to be “a cornerstone” of South African democracy.

I was immensely privileged to serve as one of the four-member Technical Commi� ee advising the Cons� tu� onal Assembly’s Theme Commi� ee 4 on the dra� ing of the Bill of Rights in the 1996 Cons� tu� on.
A� er gradua� ng in 1987 from the University of Cape Town (UCT), I joined a ﬁ rm of a� orneys with a small but well-known public interest department.

My legal work included represen� ng trade unions and workers, communi� es a� emp� ng to resist apartheid, those aﬀ ected by forced removals in urban areas, as well as those facing deten� on without trial or criminal charges as a result of various an� -apartheid ac� vi� es.
This work brought home to me the role of law under apartheid, not only in poli� cal disenfranchisement, but in crea� ng deep pa� erns of socio-economic disadvantage among black South Africans.

With poli� cal changes in the early 1990s, it became more diﬃ cult to secure funding for work related to public interest and human rights.

As a junior professional assistant in the ﬁ rm, I found myself being assigned more tradi� onal legal work such as motor vehicle accidents, divorces and commercial work.
This is not why I had studied law, and in 1993, I spent a year in the United Kingdom comple� ng an LLM degree in human rights law at Essex University.

Upon my return to South Africa in late 1994, I took up a posi� on as a researcher and coordinator of the women and human rights project (founded by Brigi� e Mabandla) at the Community Law Centre (University of the Western Cape).
The late Dullah Omar was the previous Director of the Centre, which had served as an intellectual hub for research, conferences and policy proposals during the dra� ing of the Interim Cons� tu� on and in the run-up to the adop� on of the 1996 Cons� tu� on.

Not long a� er joining the Community Law Centre (under the then directorship of Prof Nico Steytler), I was appointed as a member of the Technical Commi� ee to Theme Commi� ee 4 (the Bill of Rights commi� ee) of the Cons� tu� onal Assembly.
The Technical Commi� ee was comprised of Ig Rautenbach, John Dugard, Halton Cheadle and me.

Our role was to conduct research, provide dra� formula� ons of the various clauses in the Bill of Rights, and assist members of Theme Commi� ee 4 to produce a dra� Bill of Rights for considera� on by the Cons� tu� onal Assembly.

Theme Commi� ee 4 included a number of talented and eminent poli� cians such as Kader Asmal, Dene Smuts, Enver Surty, Naledi Pandor, Richard Sizani and Sheila Camerer.
We also a� ended public par� cipa� on workshops organised by the Secretariat of the Cons� tu� onal Assembly (expertly led by Hassen Ebrahim), and read and made recommenda� ons on all the wri� en submissions received from the public during the process.

We liaised closely in the later stages of the cons� tu� onal dra� ing process with members of the Cons� tu� onal Panel of Experts, which included now re� red Cons� tu� onal Court Jus� ces Zac Yacoob and Johan van der Westhuizen.
s t h g i r c i m o n o c e - o i c o s g n i d d e b m E 727272 Reﬂ ections on the Bill of Rights – Theme Committee 4 Fundamental to the mandate of the Technical Commi� ee was Cons� tu� onal Principle II, which required that “all universally accepted fundamental rights, freedoms and civil liber� es” should be included in the Cons� tu� on as entrenched and jus� ciable provisions.
We dra� ed background research memoranda on a wide range of civil, poli� cal, economic, social, cultural and environmental rights.

These memoranda examined to what extent these rights were protected, both in interna� onal and regional human rights instruments as well as in the cons� tu� ons of other countries.

They concluded with proposals for the protec� on of the relevant rights in dra� clauses.
These memoranda and the dra� clauses were then vigorously debated in Theme Commi� ee 4 and later in the en� re Cons� tu� onal Assembly.

Amendments were proposed, and further research and redra� ing mandated.

Through this process the Bill of Rights gradually took shape and evolved to its present form.
Although the members of the Technical Commi� ee were involved in the research and dra� ing of all the provisions in the Bill of Rights, each of us took par� cular responsibility for par� cular rights or clusters of rights.

One of my responsibili� es was the ques� on of socio-economic rights in the Bill of Rights.

There had been a rigorous public and academic debate about whether socio-economic rights belonged in a future South African Bill of Rights, and if so, how they should be included.
There was strong civil society support for the inclusion of socio-economic rights as fully jus� ciable rights in the Bill of Rights.

An alliance of human rights and development NGOs and social movements, trade unions, women’s organisa� ons and church groups was formed to campaign for the inclusion of this group of rights in the Cons� tu� on.
Rather unimagina� vely called the Ad Hoc Campaign for Social and Economic Rights, this group campaigned ac� vely for the inclusion of a full range of interna� onally recognised social and economic rights as judicially enforceable fundamental rights in the Bill of Rights.

They argued that this was both symbolically and strategically important.
On the symbolism of socio-economic rights, an inﬂ uen� al pe� � on presented by the Campaign to the Cons� tu� onal Assembly argued: [I]t is useful to see the cons� tu� on as a mirror… If this mirror does not show protec� on from shelters being demolished, does not show protec� on from being chased out of school or hospital queues, then it does not reﬂ ect the lives to which we aspire for all South Africans.
If it is only a mirror that reﬂ ects the image of a more privileged sector of society, then it is a cons� tu� on for only those people and not all the people.

Strategically, having socio-economic rights in the Cons� tu� on would also enable poor groups and communi� es to hold organs of state accountable for acts or omissions which undermined these rights.
Such mechanisms of accountability could range from submissions to government departments and legislatures and complaints to Chapter 9 ins� tu� ons such as the Human Rights Commissions, and ul� mately to li� ga� on before the courts.

A remarkable feature of the cons� tu� onal nego� a� ons was that all the poli� cal par� es supported some form of recogni� on of socio-economic rights in the Bill of Rights.
For the ANC, the tradi� ons of the Freedom Charter, the intellectual work of stalwarts such as Albie Sachs and Kader Asmal, and the role socio-economic rights could play in redressing the social and economic legacy of apartheid were instrumental.
As the late former President Mandela stated in an address to an ANC Cons� tu� onal Commi� ee Conference on a Bill of Rights in 1991: A simple vote, without food, shelter and health care is to use ﬁ rst genera� on rights as a smokescreen to obscure the deep underlying forces which dehumanise people.

It is to create an appearance of equality and jus� ce, while by implica� on socio-economic Reﬂ ections on the Bill of Rights – Theme Committee 4 73 inequality is entrenched.
We do not want freedom without bread, nor do we want bread without freedom.

We must provide for all the fundamental rights and freedoms associated with a democra� c society.

The PAC strongly supported rights such as access to land and housing that would help towards res� tu� on and the redress of the dispossession of the black majority during the colonial and apartheid eras.
The DP − now the DA − and the NP supported rights and ins� tu� onal mechanisms that would enhance State accountability in the civil, poli� cal, economic and cultural spheres.

All the poli� cal par� es agreed that three key principles should guide the manner in which socio-economic rights were entrenched in the Bill of Rights.

Firstly, they should be dra� ed in a way that did not place an impossible burden on the State, and that was sensi� ve to the limita� ons of its available resources and capacity.
Secondly, the primary responsibility for giving eﬀ ect to these rights by adop� ng reasonable policies and legisla� on should rest on the execu� ve and legislature.

Thirdly, the courts should have a meaningful role in holding organs of state accountable for their obliga� ons in rela� on to these rights.

At the � me when the Cons� tu� on was being dra� ed, compara� ve cons� tu� onal jurisprudence on socio-economic rights (with the notable excep� on of India) was rela� vely sparse.
A major source of inﬂ uence in dra� ing the socio-economic rights provisions in the Cons� tu� on, especially Sec� ons 26 (housing) and 27 (health care, food, water and social security), was the Interna� onal Covenant on Economic, Social and Cultural Rights, 1966.

This was the pre- eminent interna� onal human rights treaty protec� ng economic, social and cultural rights, and the sister human rights treaty to the Interna� onal Covenant on Civil and Poli� cal Rights.
The UN Commi� ee on Economic, Social and Cultural Rights had developed a number of inﬂ uen� al standards for assessing states’ compliance with the various rights protected in the Covenant.

There was general agreement among the members of the Technical Commi� ee and Theme Commi� ee 4 that Ar� cle 2 of the Covenant (the clause deﬁ ning the nature of State par� es’ obliga� ons) provided the appropriate conceptual tools for mee� ng the three-fold objec� ves for socio-economic rights described above.
Concepts such as “within available resources” and “progressive realisa� on” would signal that it was not envisaged that these rights would be fully realised overnight, par� cularly given the legacy of the socio-economic backlogs inherited from the past.

The obliga� on on State par� es “to take steps ... by all appropriate means, including par� cularly the adop� on of legisla� ve measures” in Ar� cle 2 of the Covenant provided the inspira� on for Sec� ons 26(2) and 27(2) of the Bill of Rights.
It signaled clearly that the State bears the primary responsibility for taking the necessary measures to achieve the full realisa� on of these rights.

During the course of the cons� tu� onal nego� a� ons, this was adapted to require the State to “adopt reasonable legisla� ve and other measures”.

It was felt that the concept of “reasonableness” resonated with South African legal concepts and tradi� ons.
Moreover, it would avoid the courts prescribing socio-economic policies to the democra� cally elected branches of government while at the same � me enabling them to hold the poli� cal branches accountable for legisla� on and policy which had an unreasonable impact on people’s socio-economic well-being.

It was also clearly understood that reasonableness had to be evaluated in rela� on to the norma� ve values and purposes which underlie socio-economic rights.
These values are the founda� onal cons� tu� onal values of human dignity, equality and freedom.

In addi� on, as Sec� on 39 of the Cons� tu� on states, courts and all other bodies interpre� ng the Bill of Rights “must consider interna� onal law, and may consider foreign law”.

For example, Sec� on 26 of the Cons� tu� on confers on everyone the right to “adequate” housing.
The State must “take reasonable legisla� ve and other measures, within its available resources, to achieve the progressive realisa� on of this right”.
In response to ques� ons during the nego� a� ng process as to how the “adequacy” of housing should be assessed, the Technical Commi� ee highlighted the seven key factors which the UN Commi� ee on Economic, Social and Cultural 74 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 75 Rights iden� ﬁ ed as important to the adequacy of housing: (a) legal security of tenure; (b) the availability of services, materials, facili� es and infrastructure; (c) aﬀ ordability; (d) habitability; (e) accessibility; (f) loca� on; and (g) cultural adequacy.
It was also agreed during the nego� a� ng process that certain categories of socio-economic rights should not be subject to the qualifying phrases of “progressive” realisa� on” and “within available resources”.
These rights were: the right not to be evicted from one’s home without a court order and a� er considering all relevant circumstances (S 26(3)); the right against the refusal of emergency medical treatment (S 27(3)); the right of every child “to basic nutri� on, shelter, basic health care services and social services” (S 28(1)(c)); the right “to basic educa� on, including adult basic educa� on” (S 29(1)(a)); and the right of persons deprived of their liberty “to condi� ons of deten� on consistent with human dignity, including adequate accommoda� on, nutri� on, reading material and medical treatment” (S 35(2)(e)).
These rights protect especially vulnerable groups such as children, persons in State custody, or those facing homelessness as a result of evic� on.

The State should take immediate measures to respect and secure the rights of these groups, and any limita� on of these rights would have to be evaluated in terms of the strict propor� onality test of the general limita� ons clause (S 36).

As is well known, another remarkable feature of the South African Bill of Rights is its horizontal applica� on.
The rights in the Bill of Rights can be claimed not only against organs of the state, but also against private en� � es when the nature of the right and the nature of any duty imposed by the right makes it capable of applica� on to these en� � es (S 8(2) read with S 8(3)).

In the research and debates around socio-economic rights, it was pointed out that these rights could also apply to powerful private en� � es such as banks, landlords, insurance companies, medical aid schemes and employers.
This horizontal applica� on of socio-economic rights would be par� cularly appropriate in situa� ons where these private en� � es used their economic power to unreasonably or unfairly deprive disadvantaged groups of access to socio-economic rights.

Moreover, in terms of Sec� on 39(2) of the Bill of Rights, all legisla� on must be interpreted and the common law and customary law developed to “promote the spirit, purport and objects of the Bill of Rights”.
This implies that the en� re body of South African law, including property law, contract law, family law and all areas of customary law, must be developed in ways that enhance rather than impede people’s access to fundamental human rights, including socio-economic rights.

On 10 December 2016 it will be 20 years since the late former President Mandela signed the 1996 Cons� tu� on into law.
A ra� of signiﬁ cant legisla� on and policies have been adopted to give eﬀ ect to socio-economic rights in the spheres of housing, health care, water, social security and educa� on.

Moreover, the Cons� tu� onal Court along with the other courts have developed a sophis� cated, nuanced jurisprudence on these rights which is admired globally.
These include landmark cases such as Grootboom which led to the adop� on of an emergency housing programme; the Treatment Acti on Campaign case leading to a major an� retroviral programme to prevent mother-to-child transmission of HIV; the Khosa and Mahlauli case extending social assistance grants to permanent residents; a range of evic� ons cases providing procedural and substan� ve safeguards to those facing homelessness as a result of evic� ons; and a growing number of cases seeking to improve the quality of educa� on provided to disadvantaged learners.
Many innova� ve monitoring and accountability tools for socio-economic rights have been developed by the Human Rights Commission as well as civil society organisa� ons.

As noted above, the dra� ers of the socio-economic rights provisions in the Bill of Rights drew inspira� on from the Interna� onal Covenant on Economic, Social and Cultural Rights.
It is ﬁ � ng therefore that in dra� ing an Op� onal Protocol to this Covenant the dra� ers borrowed aspects of the model of reasonableness review ﬁ rst developed by the Cons� tu� onal Court in the Grootboom case.

This Protocol, which was adopted on 10 December 2008, redresses a historic imbalance in the protec� on of economic, social and cultural rights globally.
As is the case with the Interna� onal Covenant on Civil and Poli� cal Rights, a mechanism now exists for Reﬂ ections on the Bill of Rights – Theme Committee 4 75 individuals to ﬁ le individual complaints with the Commi� ee on Economic, Social and Cultural Rights rela� ng to viola� ons of their economic, social and cultural rights.
The adop� on of a reasonableness model of review in Ar� cle 8(4) of the Op� onal Protocol underscores the close interconnec� ons between na� onal and interna� onal law, par� cularly rela� ng to socio- economic rights.

Despite President Mandela signing the Covenant on Economic, Social and Cultural Rights on his ﬁ rst historic visit to the UN General Assembly in 1994, South Africa only ra� ﬁ ed this Covenant on 12 January 2015.

It has not to date ra� ﬁ ed the Op� onal Protocol to the Covenant.
The inclusion of socio-economic rights as jus� ciable rights in its Bill of Rights was a major landmark in global and African regional cons� tu� onalism.

It has inspired the inclusion of socio-economic rights in the new wave of cons� tu� ons being dra� ed in Africa, par� cularly in Kenya and Zimbabwe.

It will also undoubtedly have an inﬂ uence in the emerging jurisprudence of the African Court on Human and Peoples’ Rights.
The ways in which the South African government, the courts and Chapter 9 ins� tu� ons such as the Human Rights Commission have given eﬀ ect to socio-economic rights is the subject of much debate and academic literature here and abroad.

When I look back on the dra� ing of the Bill of Rights, I am struck by the commitment shared by all involved in the process to ensure that it contributed to improving the lives of our people and freeing their poten� al.
It was this commitment that helped resolve seemingly intractable conﬂ icts and divisions on various aspects of the Bill of Rights.

It was a � me of great idealism and hope for a be� er future built on the cornerstones of democracy and human rights.

The South African Cons� tu� onal Assembly displayed great vision and foresight by agreeing to a holis� c, integrated set of rights which recognise and protect all signiﬁ cant aspects of human well-being and prosperity.
Twenty years since the adop� on of this visionary Bill of Rights, poverty and inequality s� ll divide our society along the ﬁ ssures of race, class and gender.

There are stark dispari� es in the quality of social goods such as housing, educa� on and health care enjoyed between rich and poor.

Many communi� es throughout South Africa resort to protest ac� on to draw a� en� on to their unmet socio-economic needs.
The #FeesMustFall movement has highlighted the serious ﬁ nancial and ins� tu� onal barriers experienced by our youth in the ter� ary educa� on sector.

Despite the progress that has been made it is more urgent than ever before that not only government but society as a whole should recommit themselves to realising the socio- economic rights enshrined in the Bill of Rights.
They are integral to the commitment in the Preamble that the Cons� tu� on should serve as instrument for achieving social jus� ce and an improved quality of life for all.

If tangible progress is not made in this regard, I fear that the cornerstone of our Cons� tu� on will crack, threatening the stability of our cons� tu� onal democracy.

76 Reﬂ ections on the Bill of Rights – Theme Committee 4 BLADE EMMANUEL NZIMANDE Dr Nzimande was born in KwaDambuza, Pietermaritzburg in April 1958.
He holds an MA in Industrial Phycology (1982) and a BA(Hons) in Industrial Psychology (1981) from the University of Natal; and a BA in Psychology and Public Administra� on (1980) from the University of Zululand.

He was awarded a doctorate by the University of Natal in 1993 for Philosophy, specialising in Industrial and Labour Studies.

Between 1989 and 1994, he was the Director: Educa� on Policy Unit at the University of Natal.
He held a number of part-� me posi� ons working with various educa� on ins� tu� ons, most notably SACHED, in 1982.

In the late 1980s, Dr Nzimande lectured at both the Umlazi campus and the University of Natal’s Howard College campus.

Dr Nzimande started working with the ANC in their underground opera� ons in 1986, when he was drawn into the ANC’s research and policy project named PASA, which was aimed at preparing the ANC for a new democra� c South Africa.
Dr Nzimande has published extensively, including numerous works related to the areas he researched, namely educa� on, civil society and the state, aﬃ rma� ve ac� on and educa� on policy, development and socialism.

He was a member of NEUSA, the main forerunner of SADTU, UDUSA and the NECC, and served in many NGOs suppor� ng the mass and labour struggles in the 1980s.

In addi� on, Dr Nzimande has held the posi� on of General Secretary of the SACP since 1998.

He has been a member of the ANC NEC since 1994.


He was also a member of its NWC during the period 1994 to 1997, and has been again since 2007.

Since 1994, Dr Nzimande has made an enormous contribu� on to the reconstruc� on and development of our country.

Dr Nzimande was an MP and the ﬁ rst chairperson of Parliament’s Por� olio Commi� ee on Educa� on in the Democra� c South Africa from 1994 to 1999.

Dr Nzimande is the ﬁ rst Minister of Higher Educa� on and Training.
He was appointed in 2009, was reappointed in 2014, and s� ll serves in this posi� on.

Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 77 77 19 CONTENTIOUS AND COMPLEX – EDUCATION IS A RIGHT Blade Nzimande In 1994 I was elected to the Na� onal Assembly as an MP.

I was also deployed as chairperson of the Por� olio Commi� ee of Educa� on in the Na� onal Assembly.
In addi� on, I was entrusted with leading the nego� a� ons on the educa� on clause for the ANC and had the privilege of having a number of educa� on ac� vists and leaders in the ANC Educa� on Study Group.

They included Cdes Naledi Pandor, Mebathisi Mdladlana and Ishmael Vadi.
Cde Pandor was also the chairperson of the study group on the Bill of Rights, with Cde Mdladlana as former president of the SADTU, then the largest teachers union and the second largest aﬃ liate of COSATU, and Cde Vadi, a leader of SADTU and the NECC.

They all came with their history of poli� cal ac� vism, especially in the educa� on sector.

If I recall, the educa� on clause was one of the last three and longest nego� ated clauses in the Bill of Rights.

It went through a rather torturous process.


Some of the most conten� ous issues concerned language, locus of governance for schools and the schooling system, the right to form private schools, and university autonomy.

The opposi� on par� es, especially the NP and IFP, argued strongly for a principle of subsidiarity, which meant that more decision-making powers in schools and in our schooling system should rest with the School Governing Bodies (SGBs).
They also argued that the schooling system should be federalised and be the exclusive responsibility of provinces, and for na� onal government to play no role whatsoever, except perhaps to guarantee equitable funding from the ﬁ scus.
The ANC, on the other hand, was concerned that this was a strategy to maintain as much of the apartheid status quo as possible, and therefore decisive na� onal government interven� ons were needed to overhaul the schooling system totally and to do away with racially and ethnically based schools.

An interes� ng complica� on during this period was that while we were dra� ing the Cons� tu� on, we had to urgently introduce legisla� on to start transforming the apartheid educa� on system that we had inherited.
The ﬁ rst piece of legisla� on that we had to pass in educa� on, was the Na� onal Educa� on Policy Act (NEPA), passed in 1995.

This piece of legisla� on gave the na� onal Minister of Educa� on (at the � me Minister Sibusiso Bhengu) the power to change educa� on policy for the en� re country.

The opposi� on par� es opposed this legisla� on strenuously as it underwent discussion in the Por� olio Commi� ee.
At its last si� ng to sign oﬀ the legisla� on for tabling in the Na� onal Assembly, the opposi� on organised a grand spectacle.

They arrived late for the Commi� ee mee� ng and were accompanied by hordes of media representa� ves.

They stated their objec� ons and walked out of the Commi� ee mee� ng.

They did not want the na� onal Department of Educa� on and the Minister to set na� onal policy.
We had to pass this piece of legisla� on even though the Cons� tu� on was not yet ﬁ nalised, as we had to move speedily and decisively with the transforma� on of the educa� on system.

The next and perhaps most important piece of legisla� on on educa� on to be passed by the newly elected democra� c Parliament was SASA of 1996.

Major ba� les fought in the cons� tu� on-making process were also fought in the Commi� ee during the processing of this legisla� on.
– 787878 Reﬂ ections on the Bill of Rights – Theme Committee 4 The opposi� on, in its a� empts to drive a wedge between the Minister and the ANC Study Group, spoke of the existence of two versions of the Schools Bill, namely the “Bhengu Bill” and the “Nzimande Bill”.
SASA did away with a racially and ethnically based schooling system, introduced a democra� c school governance system, and sought to strike a balance in the power of SGBs, provincial governments and the na� onal government.

Although weaknesses were later iden� ﬁ ed, it nevertheless provided a powerful framework for the transforma� on of our schooling system.
If there was one issue that united all Afrikaner poli� cal par� es and lobby groups, it was the ﬁ ght to maintain Afrikaans single medium schools, and a struggle to have at least one university reserved as an Afrikaans only university.

They had par� cularly targeted Stellenbosch to be one such ins� tu� on.
I vividly recall a mee� ng where about 25 Afrikaner poli� cal par� es and civic groups, across the poli� cal spectrum, requested to meet with President Mandela to express their concerns about the refusal of the ANC to allow such educa� onal arrangements against the backdrop of leading the struggle for crea� ng a non-racial society.
President Mandela invited me to this mee� ng as these groupings had targeted me as the main culprit, some likening me to the Bri� sh colonialist, Alfred Milner, who wanted to destroy Afrikaans.
We were able to explain our ra� onale for not having exclusive Afrikaans ins� tu� ons, convey our cons� tu� onal impera� ve of giving parity of esteem to all languages and assure the representa� ves that wherever prac� cable the language of learning and teaching would be the language chosen by the community of learners.

This would, however, always be subject to the condi� on that no learner would be excluded on the basis of race or language.
Re-reading the educa� on clause against this background one will see how we cra� ed a compromise, but without succumbing to the crea� on of single medium (Afrikaans only) educa� on ins� tu� ons as a cons� tu� onal right.

On studying the Freedom Charter, we realised that adult educa� on was not men� oned in the Interim Cons� tu� on.
Because more than four million of our adults, who had no access to formal educa� on, were illiterate and innumerate, we ensured that the provision of mass literacy was included in the 1996 Cons� tu� on.

Consequently government embarked on a mass literacy programme under the banner of Kha ri Gude, and more than 4,3 million adults became func� onally literate and numerate.
We also proceeded on the principle that educa� on was a con� nuum and that we should therefore ensure that we added further educa� on to basic educa� on.

As outlined above, we were doing many things simultaneously in the early years.

We had to repeal repressive and discriminatory laws and promote equality and equity, we had to develop rules of Parliament and perform our oversight of government and other organs of state.
To the extent that we were involved with the NEPA Bill and the SASA, we had to recognise that basic educa� on according to the interna� onal deﬁ ni� on was either limited to primary school (seven years) or primary and junior high (nine years) but did not exceed ten years.

It was our belief, however, that ul� mately 12 grades should be compulsory.
In the legisla� on, we made the ﬁ rst nine years compulsory and set about crea� ng a uniform curriculum for the country, mindful of the fact that there were 19 provincial educa� on departments which we had to transform into one cohesive and uniform system of educa� on.
It must be remembered that the DP, NP, FF and IFP showed very strong federal tendencies at that � me, and also wanted the SGBs to be the locus of authority for policy on language, admission and the religious and cultural ethos of their ins� tu� ons.
It was clear to us that if we wanted to fulﬁ l the promise of equal access and integra� on, the heads of department should be the locus of authority to ensure that there would be no gatekeeping by SGBs that would seek to exclude black learners on the basis of language, culture and religion when, in fact, the actual mo� ve was to perpetuate white privilege.
Reﬂ ections on the Bill of Rights – Theme Committee 4 79 We were aware that technical training or voca� onal training should be oﬀ ered at either technical schools or technical voca� onal colleges, which we would establish later in order to create alternate voca� onal and occupa� onal streams.

The ANC sought to address the issues of access, availability and aﬀ ordability by establishing no-fee schools.
These schools were ranked quin� le 1 to 3 (schools where learners were poor; strong indicators of poverty were informed by the infrastructure and socio-economic reali� es of the areas in which the schools were located).

The SASA would exempt learners in quin� le 4 and 5 (referred to as model C or historically advantaged schools) by exemp� ng them on the basis that they were indigent.
Today more than 75% of the learner popula� on a� ends no-fee schools and more than 9 million children are fed a nutri� ous meal each day.

Regarding the right to basic educa� on, children receive sta� onery, text books and workbooks from the State.

The right to further educa� on (post-school and ter� ary educa� on) was more complex.

Universi� es and universi� es of technology (then known as technikons) were deemed to be autonomous and independent.
The historically advantaged Afrikaner universi� es wanted to con� nue using Afrikaans as a medium of instruc� on.

The Universi� es of Stellenbosch, Pretoria and the Randse Afrikaanse Universiteit (now University of Johannesburg) in par� cular were arguing for the preserva� on of their ethos through Afrikaans as the medium of instruc� on.

Of course, the eﬀ ect of agreeing to such a request would eﬀ ec� vely exclude thousands of students who sought entry but who did not have a command of Afrikaans.
It is for this reason that we did not yield to the demand of a dedicated Afrikaans ins� tu� on.

Obviously, this was a sensi� ve ma� er that would con� nue for a decade or two into our democra� c dispensa� on.

Only recently, the Universi� es of Pretoria and Stellenbosch embarked on policy transforma� on that a� ends to the language and cultural ethos it should adopt.

We as the ANC were of course never against Afrikaans as a language, but against its use as a means of exclusion and denial of access.
About a year a� er the adop� on of the Cons� tu� on, we debated and discussed the Higher Educa� on Bill, which became an Act in 1997; another signiﬁ cant milestone on our journey to transform higher educa� on in our country.

Among other things, it struck a balance between ins� tu� onal autonomy and public accountability of our universi� es, and also opened our universi� es to all.
Consistent with the aspira� ons of the Freedom Charter, we made further educa� on progressively available to the poor, par� cularly to black students.

Within 20 years, the educa� on landscape has changed signiﬁ cantly: the majority of learners and students are black, and many of them are funded by the Na� onal Student Financial Aid Scheme (NSFAS).

Yet much more has to be done but we have clearly made huge strides.

Today the majority of students at university are black and female.
Since the adop� on of our Cons� tu� on, NSFAS has achieved much.

Since its founding it has now supported more than 1,7 million students from poor families, most of whom being the ﬁ rst ones in their families to a� end university or college and spending more than R150 billion.

In fact, NSFAS funding has contributed signiﬁ cantly towards the growth of the black middle and professional strata in our country.
This directly derives from the implementa� on of clause 29(1) b: “Everyone has the right to further educa� on, which the state, through reasonable measures, must make progressively available and accessible.” Another area of conten� on was the funding of independent schools.

Many Catholic, Muslim and other religious schools provided huge opportuni� es for black children in rural and urban schools and argued that they should receive a measure of funding.
On the ﬂ ip side of the coin were schools for aﬄ uent minori� es that would serve the narrow interests of these minority 80 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 81 groups.

A compromise was reached in terms whereof the state would have the discre� on to fund private schools, and we thought that the detail was best dealt with in legisla� on.
It is during these tumultuous � mes of #FeesMustFall, the demand for free further and ter� ary educa� on, the violence and wanton destruc� on of university ameni� es such as libraries and lecture halls, that I as one of the nego� ators of the educa� on clause am invited to reﬂ ect on the right to educa� on.

Educa� on was declared the ﬁ rst and pre-eminent government priority in the past two successive democra� c dispensa� ons.
It was also declared a “societal issue” and the “most powerful instrument to change the lives of our people”.

The Freedom Charter eloquently declared that the doors of learning and culture should be opened.

Among its provisions were that educa� on should be free, universal, compulsory and equal (basic).

It further stated that technical and higher educa� on shall be opened to all by means of State allowances and scholarships awarded on the basis of merit.
It pledged that adult illiteracy would be overcome through the introduc� on of mass literacy programmes.

In the Interim Cons� tu� on, reference was made to the right to basic educa� on and equal access to educa� onal ins� tu� ons, to instruc� on in the language of choice, where prac� cable, and to the establishment of ins� tu� ons on the basis of language, culture and religion provided there was no discrimina� on on the basis of race.
It is important that we endeavour in collabora� on with the private sector, government and all other stakeholders to give meaning and content to the aspira� ons stated in the Freedom Charter and the rights enshrined in our Cons� tu� on.

Similarly, it is important to acknowledge and defend the gains made since the adop� on of the Cons� tu� on in 1996, and to use these as a basis to take our struggles forward in the transforma� on of South Africa’s educa� on system.
Reﬂ ections on the Bill of Rights – Theme Committee 4 81 CORNÉ (CP) MULDER is the chairperson of Dr CP Mulder the Freedom Front Plus Cons� tu� onal Commi� ee.

He obtained a BIuris degree from the Potchefstroomse Universiteit vir Christelike Hoër Onderwys (currently North- in 1980, with Poli� cal West University) Science and Interna� onal Poli� cs as addi� onal primary subjects.

He completed his LLB degree in 1982, with dis� nc� ons in a number of subjects.
Following this, he undertook research at the Ins� tute for Advanced Legal Studies at the University of London and the Max Planck Ins� tute für Ausländisches Öﬀ entliches Recht und Völkerrecht in Heidelberg, Germany.

This research was undertaken in support of the comple� on of a doctorate in Cons� tu� onal Law (LLD), which he completed in 1984 at the age of 26 years.

A� er 30 years he is s� ll the youngest person to have completed a Doctorate in Law at the Legal Faculty of the North- West University.
Having been admi� ed as an a� orney to the High Court, he was elected as an MP in a by-elec� on on 29 March 1988.

In 1989 he was re-elected to Parliament during the general elec� on.

He represented the Randfontein cons� tuency.

He was directly involved in the founding of the Freedom Front (FF), and was re-elected to Parliament on 27 April 1994, on 2 June 1999, on 14 April 2004, on 22 April 2009 and again on 7 May 2014.

He is a member of the Home Aﬀ airs por� olio commi� ee.
He was appointed as Chief Whip of the FF Plus in 1999.

He represents the group of 10 smaller poli� cal par� es in Parliament on the Parliamentary Oversight Authority, which is Parliament’s highest policy making body.

He was involved in the wri� ng of the new Cons� tu� on as a member of the Cons� tu� onal Commi� ee of the Cons� tu� onal Assembly.
Following a nego� ated agreement with the ANC, he proposed and dra� ed Sec� on 185 and Sec� on 235 of the Cons� tu� on, which deal with self-determina� on and the rights of groups, in the Cons� tu� onal Assembly.

Both sec� ons were adopted unchanged and included in the Cons� tu� on.

He was chosen by opposi� on members in Parliament as one of four representa� ves to the Judicial Services Commission.

He served on the Commission for three years.


This is the commission that considers and recommends candidates to become judges in South African courts.

Dr Mulder has undertaken extensive study and research tours abroad, and played an important role in placing the FF Plus in line with modern interna� onal cons� tu� onal developments regarding self-determina� on and minority rights.
82 Reﬂ ections on the Bill of Rights – Theme Committee 4 20 CULTURAL, LINGUISTIC AND RELIGIOUS RIGHTS FOR ALL Corné Mulder In 1985 I concluded the abstract of my LLD doctoral thesis with the following sentence: “South African Cons� tu� onal Law is on the eve of an interes� ng and exci� ng phase of cons� tu� onal development.” Li� le did I know then what drama� c and interes� ng � mes lay ahead for our cons� tu� onal law and our cons� tu� onal dispensa� on.
Eight years later I was privileged to be a member of the Cons� tu� onal Commi� ee of the Cons� tu� onal Assembly of South Africa, wri� ng and nego� a� ng a new cons� tu� on that would form the founda� on of a new South Africa.

That Cons� tu� onal Commi� ee consisted of 80 members who were senior members of the various par� cipa� ng poli� cal par� es entrusted to write and nego� ate our new Cons� tu� on.
Only 11 of the original 80 members are s� ll in Parliament, playing an ac� ve role in shaping our country’s future.

They are, in alphabe� cal order: PJ Gordhan, L Landers, NN Mapisa-Nqakula, B Mbete, KR Meshoe, CP Mulder, BE Nzimande, GNM Pandor, MC Ramaphosa, L Sisulu and ME Surty.

On the one hand the � me of nego� a� ons was characterised by strife, violence, despair, conﬂ ict and even anarchy, and on the other hand it was a � me of promise, excitement and new beginnings.
There were so many ma� ers and issues to be dealt with.

Though we understood the larger picture of what was happening, it was also important to represent our cons� tuency.

It was important to ensure that the Afrikaner and other minori� es would be accommodated in a new cons� tu� onal dispensa� on.

Our par� cipa� on did not make us popular and did not bring us fame or fortune.

On the contrary, we received death threats from our own people.
Hotheads, who were prepared to plunge us all into civil war, were very vocal.

They could not understand that there would be no winners on any side.

We regarded Schedule 4 of the Interim Cons� tu� on, which contained all the cons� tu� onal principles that would guide the cons� tu� on-wri� ng process of our current Cons� tu� on, as vital.

Principle XXXIV was agreed upon at the last minute, but it was of great importance.

This laid the founda� on to what I believe averted a civil war at the � me.
Principle XXXIV contained the following: 1.

2.

3.

This Schedule and the recogni� on therein of the right of the South African people as a whole to self-determina� on, shall not be construed as precluding, within the framework of the said right, cons� tu� onal provision for a no� on of the right to self-determina� on by any community sharing a common cultural and language heritage, whether in a territorial en� ty within the Republic or in any other recognised way.
The Cons� tu� on may give expression to any par� cular form of self- determina� on provided there is substan� al proven support within the community concerned for such a form of self-determina� on.

If a territorial en� ty referred to in paragraph 1 is established in terms of this Cons� tu� on before the new cons� tu� onal text is adopted, the new Cons� tu� on shall entrench the con� nua� on of such territorial en� ty, including its structures, powers and func� ons.
(Principle XXXIV inserted by Sec 13(b) of Act 2 of 1994.)

s u o i g i l e r d n a c i t s i u g n i l , l a r u t l u C l l a r o f s t h g i r TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 8383 83 The ﬁ rst democra� c elec� on in 1994 showed substan� al proven support for the content and it was accepted as such.
During the nego� a� ons that followed, Sec� on 30, dealing with language and culture as well as Sec� on 31, dealing with cultural, religious and linguis� c communi� es, became part of Chapter 2 of the Bill of Rights.

During the many late hours of nego� a� ons it was clear that certain crucial issues remained unresolved.

The fact that nothing focuses the mind like a deadline remained true.

That is exactly what happened on the last and ﬁ nal night of nego� a� ons in the Cons� tu� onal Commi� ee.
Agreement on the property clause was the ﬁ rst of what became known as the “historic breakthroughs”.

This involved bi� er conten� on that was worn away by unremi� ng nego� a� on un� l consensus was reached.

A second historic breakthrough came a li� le later.
It was described by a very alert and observant member of the press as follows: Another followed at 2.20 am when the nego� ators from the Freedom Front, Na� onal Party and African Na� onal Congress emerged sombre, serious and solemn from a three- way session on cultural councils, and crossed the lobby towards the Old Assembly Chambers.

There were those who looked at the sober faces and feared the worst.

But what they read in the averted eyes was not grim dissension, it was the enormity of agreement.
An enormity that produced tears, shivers and goose bumps when Dr Corné Mulder (Freedom Front) announced that there was poli� cal agreement on the inclusion in the cons� tu� on of a Commission for the Promo� on and Protec� on of Cultural Rights.

“It was a brave move for the ANC,” said Freedom Front leader General Constand Viljoen.

He added that the big task would be to arrive at implementa� on but that the ice had been broken.

“It proves South Africa is a country with a big heart,” said Ken Andrew (DP).
“Everyone claims victory,” said Roelf Meyer.

“This is a moment of special historical signiﬁ cance,” said Ramaphosa.

“There hasn’t been a single issue that has united us like this has done.

It shows that we are a great na� on able to deal with sensi� ve problems and ﬁ nd solu� ons.

I was privileged to chair the mee� ng between the par� es.

When we struck agreement, everyone was overcome with emo� on.

When I took a close look, I could see traces of tears in their eyes.
I believe we are now irrevocably on our way to resolving every outstanding issue in the new cons� tu� on.” This was a moment in � me that showed that we can overcome our diﬀ erences, that we can achieve what is needed to make this the great country that we all deserve.

On Wednesday, 24 April 1996, I was privileged to par� cipate in the First Reading Debate of the Cons� tu� on of the Republic of South Africa bill in the Cons� tu� onal Assembly.
I could announce that another poli� cal agreement was reached; that provision in the Cons� tu� on would be made for collec� ve rights as well as the right to self-determina� on for communi� es bound by a common cultural and language heritage in terms of Principle XXXIV of the Interim Cons� tu� on.

I was then given the honour to formally propose that a new Sec� on 235 under the heading, “Self-determina� on”, be included in the Bill.
The clause I proposed reads as follows: The right of the South African people as a whole to self-determina� on, as manifested in this Cons� tu� on, does not preclude, within the framework of this right, recogni� on of the no� on of the right of self-determina� on of any community sharing a common cultural and 84 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 85 language heritage, within a territorial en� ty in the Republic or in any other way, determined by na� onal legisla� on.
This proposal was unanimously accepted by the Cons� tu� onal Assembly and became part of our Cons� tu� on.

It should never be forgo� en that this clause averted a civil war at the � me.

To ignore or remove it now is not an op� on.

It is 20 years later, and we can ask ourselves where we stand today in this interes� ng and exci� ng phase of cons� tu� onal development.

The only constant in life is change.


The agreements reached ﬁ rst with the Interim Cons� tu� on in 1994 and later with the current Cons� tu� on in 1996, were reached by the ﬁ rst genera� on of leaders at the � me, namely Mandela, De Klerk, Viljoen, Buthelezi, De Beer, Holomisa and many others.

Then a period of approximately 10 years went by and we had new leaders ̶ our second genera� on of leaders.
All of them were also involved in this fascina� ng process and they all remained commi� ed to what we achieved; to what we agreed upon at the � me.

We are now entering a new phase.

In this phase we have a third genera� on of leaders.

These leaders were not there.

They did not par� cipate in the nego� a� ons.

They did not experience the strife, violence, despair, conﬂ ict and war.

Now more and more voices are being heard, sta� ng that they were not there and that those who were there sold us out.
By doing this they are taking a radical and extreme posi� on.

This posi� on moves away from the common middle ground we found.

If this con� nues to happen, an opposing radical posi� on could very soon emerge; rather sooner than later.

The eﬀ ect of this will be that the common middle ground that was found a� er so much strife and conﬂ ict, will be eroded and may even fall away.

It will take us back to the conﬂ ict that existed many years ago.

This cannot and should not be allowed to happen.


The future of all our children demands of us never to let this happen.

What did we hope to achieve when we embarked on this perilous journey 20 years ago?

A� er all was said and done we hoped to achieve a bright future for all our children under the beau� ful African sun.
No other document or speech embodies more clearly what we hope for and s� ll need to do than the post-amble of the Interim Cons� tu� on: This Cons� tu� on provides a historic bridge between the past of a deeply divided society characterized by strife, conﬂ ict, untold suﬀ ering and injus� ce, and a future founded on the recogni� on of human rights, democracy and peaceful co-existence and development opportuni� es for all South Africans, irrespec� ve of colour, race, class, belief or sex.
The pursuit of na� onal unity, the well-being of all South African ci� zens and peace require reconcilia� on between the people of South Africa and the reconstruc� on of society.

The adop� on of this Cons� tu� on lays the secure founda� on for the people of South Africa to transcend the divisions and strife of the past, which generated gross viola� ons of human rights, the transgression of humanitarian principles in violent conﬂ icts and the legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not vengeance, a need for repara� on but not for retalia� on, a need for ubuntu but not vic� misa� on.

With this Cons� tu� on and these commitments we, the people of South Africa, open a new chapter in the history of our country.

This is what we should all commit ourselves to with new dedica� on and vigour.

There is work to be done.


Reﬂ ections on the Bill of Rights – Theme Committee 4 85 WILLIE HOFMEYR is currently a Deputy Willie Hofmeyr Na� onal Director of Public Prosecu� ons (DNDPP) at the Na� onal Prosecu� ng Authority.

Prior to 1990, he was ac� ve in student poli� cs and in the early union movement in the 1970s, and was banned for ﬁ ve years under the Internal Security Act.
From 1983 he was ac� ve in the United Democra� c Front in the Western Cape and served on its Provincial Execu� ve from 1987 to 1991.

From 1991 to 1994 he served as Assistant Secretary on the Provincial Execu� ve of the ANC.

Hofmeyr served as an ANC MP from 1994 to 1999.

During this period, he served as co-chairperson of the Commi� ee responsible for the chapter on the Judiciary in the Cons� tu� on.
He played an integral role in the process of ﬁ nalising the Cons� tu� on while serving as a member of the Cons� tu� onal Commi� ee of the Cons� tu� onal Assembly from 1994 to 1996, where se� lements to deadlocked issues were nego� ated.

During his tenure as MP, he was involved in the Por� olio Commi� ee of Jus� ce.

From 1997 to 1999 he was the Chairperson of the Cons� tu� onal Review Commi� ee, and also served as the Parliamentary Counsellor to the then Deputy President from 1998 to 1999.
In May 1999 he was appointed as a Special Director of Public Prosecu� ons to establish and head the Asset Forfeiture Unit of the NPA, and in 2001 he was promoted to Deputy Na� onal Director.

He also served as Head of the Special Inves� ga� ng Unit from 2001 to 2011.

He holds a BA in Economics (1976), a master’s degree in Economic History (1984) and an LLB from the University of Cape Town.

He was admi� ed as an a� orney in 1991.


86 Reﬂ ections on the Bill of Rights – Theme Committee 4 21 FROM OUTLAW TO SHERIFF Willie Hofmeyr Background When does a human rights lawyer who has become an expert in frustra� ng the opera� on of the criminal jus� ce system become a legislator commi� ed to passing laws tough enough to frustrate lawbreakers and close legal loopholes?

And then, as if this volte-face were not enough, join the prosecu� on services to take up the ﬁ ght against violence and criminality?
The irony will not be lost on my readers nor, indeed, on myself.

As a young ac� vist, I studied law with the sole purpose of using it to ﬁ ght the State by defending those who fell foul of the harsh laws of the apartheid system.

In the ensuing years, I was arrested some 20 or 30 � mes for various illegal ac� vi� es, but never prosecuted successfully.

As a serial law-breaker, I learnt how ineﬀ ec� ve the jus� ce system was against those with good lawyers.
My aim was, of course, like that of many others, to frustrate and defeat apartheid and usher in an era of jus� ce, democracy and human rights.

And that was, almost miraculously, exactly what we achieved.

“Ready to govern!” we proclaimed, and in some ways we were prepared.

OR Tambo, Albie Sachs and Kader Asmal, si� ng in Kader’s kitchen in Dublin in the late 1980s, had already started the process of drawing up a Bill of Rights for South Africa.
The result of their visionary eﬀ ort formed an important part of the Bill of Rights ul� mately adopted in the Interim Cons� tu� on that preceded the ﬁ rst democra� c elec� ons and the inaugura� on of President Nelson Mandela.

It was a euphoric � me.

With my peers, I lined up to take my oath in Parliament and took my seat on the Jus� ce Commi� ee.

We had one of the most principled bills of rights in the world.

We felt proud.

We felt squeaky clean and new.


The 1996 Cons� tu� on It was in late 1994 that I received a call from Cyril Ramaphosa asking me to become part of the small ANC team coordina� ng the all-party nego� a� ons for the ﬁ nal Cons� tu� on, including the Bill of Rights.

I remember sleeping very li� le in the period that followed.

None of us did.

We had a year and a half to resolve the diﬀ erences between par� es on issues that would determine the future of our country.
And some of those issues were fundamental: the death penalty; the right to abor� on, to strike and to lockout; as well as property rights.

There were some lighter moments.

Becoming known as a member of the nego� a� ng team got me into some strange situa� ons.

One of these involved being lobbied on the subject of including animal rights in the Bill of Rights.

Wan� ng to be nice, I agreed to a� end a braai (not of meat to be sure, but soya sausage).
Entering a house in the suburbs, I was startled to be greeted by a large black and white pig, which was in the kitchen with my hosts, feas� ng on the scraps from the table.

In the si� ng room were some 40 or so cats that had clearly been rescued from dire circumstances.
f f i r e h s o t w a l t u o m o r F TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 87 87 8787 I learnt that my big-hearted animal-rights friends had saved the cats from being put down.

On another occasion, I was asked to ﬁ nd ways in which to deal with the Illumina� , who were greatly troubling one of my cons� tuents.
Criminal jus� ce rights It soon emerged that we were unprepared for the very real challenges that faced us in ﬁ gh� ng crime and ensuring the safety of our ci� zens.

The Interim Cons� tu� on made it diﬃ cult for us to deal properly with the endemic wave of crime and violence that had begun in the 1980s and began to take on a new, sinister face both in the run-up to and a� er the elec� ons.
We had inherited a police force that was on the whole poorly trained, and accustomed to achieving its ends by obtaining confessions.

Contrary to our expecta� ons, the police, prosecutors, magistrates and judges feared contravening the new rights contained in the Interim Cons� tu� on, and many leaned over backwards to avoid being seen as enforcing the injus� ces of the past.
Bail was granted even in very serious cases, sentences were frequently too light, and many were acqui� ed because of minor irregulari� es.

The number of convic� ons dropped by almost half in four years.

We had opened not only our hearts but also our borders, and together with the rejoicing tourists visi� ng the new South Africa came interna� onal gangsters and smugglers, drug dealers and cyber criminals – all exploi� ng the loopholes that now existed and slipping through our borders.
While the ﬁ nal Cons� tu� on was being nego� ated, I also served on the Jus� ce Commi� ee, where we became acutely aware of the need to strike a be� er balance between the rights of criminals and the safety of law-abiding ci� zens.

It was clear that we needed to promulgate tougher laws and to close some of the loopholes.
We started working on laws dealing with bail and minimum sentences, as well as new legisla� on dealing with organised crime and with removing the proﬁ ts of crime to ensure that crime would not pay.

There was certainly great irony in this human rights lawyer becoming a tough law enforcer who argued for curtailing certain rights, while many who served under apartheid were now advoca� ng enhanced rights to protect them against the new State.
Sec� on 35: The rights of arrested, detained and accused persons It was especially crucial that this balance be struck in Sec� on 35.

Curiously but understandably, in the new post-apartheid South Africa, most of the opposi� on par� es were wary of a new government abusing its powers as had happened in the past, and defended unassailable rights for anyone accused of a crime.
Thus ini� ally most par� es favoured an approach approxima� ng the American doctrine of the fruit of the poisoned tree, namely that evidence obtained against an accused in viola� on of the Bill of Rights may not be used in a court of law.

The ANC argued for a more nuanced approach.


In the end, and a� er considerable debate, the nego� ated compromise achieved a good balance in my opinion, namely that: (5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administra� on of jus� ce.

In other words, evidence obtained unlawfully would not be excluded automa� cally.
It would only be excluded if it would render the trial unfair.

If the infringement were purely technical, however, it would not be excluded.

88 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 89 The limita� ons clause Another related and important debate was on how to state each right.
It was agreed fairly early on that a general limita� on clause should be included rather than a detailed speciﬁ ca� on of the limita� on with regard to each right.

Access to informa� on and just administra� ve ac� on The rights to access to informa� on (Sec� on 32) and just administra� ve ac� on (Sec� on 33) proved to be vitally important to sustain our vibrant democracy.
These rights cons� tuted an important and novel innova� on in the new Cons� tu� on, and could probably be counted among some of the most advanced rights of their kind in any cons� tu� on in the world at the � me, although modern democracies in Europe and elsewhere had fought hard for such rights.
A� er years of the almost obsessive secrecy of the apartheid regime, these rights were seen as essen� al to transparent and par� cipatory governance, and as cri� cal tools to meet any challenge brought by law and civil society.

Civil society, working through a coali� on of NGOs, played an extensive and inﬂ uen� al role in helping MPs dra� the ﬁ nal legisla� on.
The Promo� on of Access to Informa� on Act (PAIA) and the Promo� on of Administra� ve Jus� ce Act (PAJA) were later passed to give eﬀ ect to these rights.

The rights and the Acts are therefore interlinked.

Those who wish to challenge administra� ve decisions by the State may do so in terms of PAJA, and are able to obtain the informa� on required to do so through PAIA.

At the � me, in 1995 and 1996, we had some concerns that the public service lacked the capacity to meet the burden of these commitments.
Barely computerised and emerging extremely slowly from a legacy of secrecy and introversion, the public service was forced to develop the wherewithal to respond to the essen� al requirement that government be open and accountable.

A qualiﬁ ed right of access to informa� on was also established with respect to private bodies and individuals.

The biggest impact of PAJA has been to broaden the legal grounds on which civil society can challenge decisions or ac� ons by the State.
Such challenges are very diﬃ cult without access to the informa� on and documents rela� ng to the decisions that are held by the State, and these could now be obtained in terms of PAIA.

Although due to the op� mism and idealism that prevailed at the � me the importance of these provisions were not fully recognised, they have proved to be vital instruments for an ac� ve and vibrant civil society to hold the execu� ve to account and to prevent or reverse the abuse of power.
An early challenge in terms of the legisla� on was brought by the Khulumani Vic� ms of Torture Support Group.

Consis� ng of vic� ms of torture under apartheid, this group had given evidence at the hearings of the Truth and Reconcilia� on Commission and sought informa� on on government policy on making repara� ons.

In the face of government’s silence, they eventually approached the High Court to compel the Department of Jus� ce and the Presidency to release the document.

Many other cases followed.


The most signiﬁ cant of these was the challenge to release documents rela� ng to the arms procurement deal, which also ended up in the High Court.

Another challenge related to the failure of the Department of Jus� ce to release some of the documenta� on of the Truth and Reconcilia� on Commission, despite TRC legisla� on providing that all such documents should be placed in the archives for public consump� on.
Reﬂ ections on the Bill of Rights – Theme Committee 4 89 Such challenges have increased over � me, and these laws now play a vital role in holding the state to account.
Some of the most important cases that have been li� gated include: • PAIA: Eskom1, Mail and Guardian2, Unitas3, Brummer4, and IDASA5 • PAJA: Bato Star6, Tantoush7, AllPay8, Save the Vaal Environment9, and Brenco10 The nego� a� ng process It was all hands on deck during the diﬃ cult and o� en conten� ous nego� a� ons that took place in the Old Assembly Chamber.

In the process, I gained valuable experience in nego� a� ng.

Cyril Ramaphosa, of course, was an experienced nego� ator.
As General Secretary of the Na� onal Union of Mine Workers, he was feared and ul� mately respected for his tough nego� a� ng style on behalf of mine workers.

As chief nego� ator on the Interim Cons� tu� on, he helped lead the country to the ﬁ rst democra� c elec� ons.

He was also a ﬁ ne role model.

Tough, op� mis� c, brilliant, he had set a ﬁ ne example in building a produc� ve rela� onship of trust with Roelf Meyer, head of the NP nego� a� ng team, and other nego� ators.
And that, in the thorny months that followed, was what we had to do: talk to the enemy, eat with the enemy and drink with the enemy, un� l suddenly they were not the enemy any longer, but real people with concerns and posi� ons that we came to understand.

They had their own cons� tuencies as we had ours.

They needed to go back and sell compromises to their people, as did we.
Some were friendlier than others, but we were all in it together, driven towards our deadline by the relentless op� mism and determina� on of Cyril Ramaphosa.

At the beginning of April 1996, with less than a month to go before the launch of the Cons� tu� on and many diﬃ cult issues s� ll to be resolved, Cyril and Roelf packed us all oﬀ to the small ﬁ shing village of Arniston.

This became the famous Arniston bosberaad, away from the eyes of the media, lobbyists and other distrac� ons.
As Cyril Madlala put it in a ﬁ ne ar� cle describing the process: “There are moments when, for it to happen at all, it has to happen in the dark where the blushing cannot be seen.” It was a week of more sleepless nights, long sessions at the bar and talks, talks, talks.

“You’ve got to get to grips with the outstanding issues and ﬁ nalise them,” said Ramaphosa.

“The eyes of the na� on are on us but also we’ve got to do this for ourselves.” We ﬁ nally launched the Cons� tu� on with its new Bill of Rights.
We did not get everything we wanted, but we got most of it.

In the following year, Bulelani Ngcuka, head of the new Na� onal Prosecu� ng Authority, invited me to join him as his deputy and set up the Asset Forfeiture Unit based on legisla� on I had helped drive through the Parliamentary Jus� ce Commi� ee.

Its aim was to conﬁ scate the proceeds of crime from criminals and in so doing to curtail their ac� vi� es severely.
Being part of the months of debate and nego� a� ons was one of the highlights of my career, and it remains one of the most signiﬁ cant periods of my life.

Not only did I learn much about cons� tu� ons, but I gained invaluable experience in nego� a� ng and learned a huge amount from Cyril Ramaphosa, a master of the art of nego� a� on.

And now we had, under Ramaphosa’s leadership, taken South Africa to the next stage.
We had a cons� tu� onal democracy that was hailed and respected throughout the world and would take us forward into the new era.

90 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 91 Willie Hofmeyr of the ANC and Noël Taft , the managing secretary of Theme Committ ee 5 on the judiciary and legal systems.
Photo: With the permission of Hassen Ebrahim BHP Billiton PLC Inc and Another v De Lange and Others (189/2012) [2013] ZASCA 11; 2013 (3) SA 571 (SCA); [2013] 2 All SA 523 (SCA) (15 March 2013), h� p://www.saﬂ ii.org/za/cases/ ZASCA/2013/11.html (last visited Nov 16, 2016).
President of the Republic of South Africa and Others v M & G Media Ltd (CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29 November 2011), h� p://www.saﬂ ii.org/za/ cases/ZACC/2011/32.html (last visited Sep 8, 2014).
Van Wyk v Unitas Hospital and Another (CCT 12/07) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) (6 December 2007), h� p://www.saﬂ ii.org/za/cases/ZACC/2007/24.html (last visited Nov 16, 2016) Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21; 2009 (6) SA 323 (CC) ; 2009 (11) BCLR 1075 (CC) (13 August 2009), , h� p://www.saﬂ ii.org/za/cases/ ZACC/2009/21.html (last visited Nov 16, 2016).
Ins� tute for Democracy in South Africa and Others v African Na� onal Congress and Others (9828/03) [2005] ZAWCHC 30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C) (20 April 2005), , h� p:// www.saﬂ ii.org/za/cases/ZAWCHC/2005/30.html (last visited Nov 16, 2016).

Bato Star Fishing (Pty) Ltd v Minister of Environmental Aﬀ airs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004), , h� p://www.saﬂ ii.
org/za/cases/ZACC/2004/15.html (last visited Nov 16, 2016).

Koyabe and Others v Minister for Home Aﬀ airs and Others (CCT 53/08) [2009] ZACC 23; 2009 (12) BCLR 1192 (CC) ; 2010 (4) SA 327 (CC) (25 August 2009), , h� p://www.saﬂ ii.org/za/cases/ ZACC/2009/23.html (last visited Nov 16, 2016).

AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Execu� ve Oﬃ cer of the South African Social Security Agency and Others, 2013 ZACC 42 (2013), h� p://www.cons� tu� onalcourt.
org.za/site/allp.htm (last visited Dec 5, 2013).

Director: Mineral Development, Gauteng Region and Another v Save the Vaal Environment and Others (133/98) [1999] ZASCA 9; [1999] 2 All SA 381 (A) (12 March 1999), , h� p://www.saﬂ ii.org/ cgi-bin/disp.pl?ﬁ le=za/cases/ZASCA/1999/9.html&query=%20save%20the%20vaal (last visited Nov 17, 2016).
Chairman : Board On Tariﬀ s and Trade and Others v Brenco Incorporated and Others (285/99) [2001] ZASCA 67 (25 May 2001), h� p://www.saﬂ ii.org/cgi-bin/disp.pl?ﬁ le=za/cases/ ZASCA/2001/67.html&query=%20brenco (last visited Nov 17, 2016).

Reﬂ ections on the Bill of Rights – Theme Committee 4 91 MEMBATHISI MPHUMZI SHEPHERD MDLADLANA Mr Mdladlana Commissioner for the Republic of South Africa in Canada.
is currently the High He was born on 12 May 1952 in the rural village of Keiskammahoek in the Eastern Cape Province, South Africa.

Mr Mdladlana is a teacher by training.

He was the ﬁ rst and founding president of the largest teachers’ union in South Africa, the South African Democra� c Teachers Union (SADTU), which is an aﬃ liate of COSATU.

He is also a senior member and veteran of the ANC.

He was a Na� onal Execu� ve Member of the ANC for many years un� l 2007, serving on its Educa� on Commi� ee.
In 1994, Mr Mdladlana became an MP.

While in Parliament, he served as a chairperson of Theme Commi� ee 4 of the Cons� tu� onal Assembly from 1994 to 1996; as a member of the Home Aﬀ airs Por� olio Commi� ee from 1994 to 1998; and as Whip of the Parliamentary Programming Commi� ee from 1995 to 1998.

In 1998 the late President Nelson Mandela appointed Mr Mdladlana to his Cabinet as the Minister of Labour.
He went on to serve all four presidents of the Republic of South Africa, namely Nelson Mandela, Thabo Mbeki, Kgalema Motlanthe and Jacob Zuma, as Minister of Labour un� l 2010.

A� er comple� ng his tour of duty as Ambassador of South Africa in Burundi, Mr Mdladlana was appointed as High Commissioner of South Africa to Canada, and in September 2012 presented his Le� ers of Credence to the Right Honourable David Johnston, Governor General of Canada.
Mr Mdladlana is a devoted Chris� an and an elder and lay preacher of the Presbyterian Church of Southern Africa.

He obtained a Primary Teacher’s Cer� ﬁ cate at Lovedale in Alice in 1971, a Primary Teacher’s Diploma at Goodhope College in Cape Town in 1993, and a BA degree majoring in Educa� on and isiXhosa from UNISA in 1997.
92 Reﬂ ections on the Bill of Rights – Theme Committee 4 22 DIFFERENCE, DIVERSITY AND UNITY Membathisi Mphumzi Shepherd Mdladlana What an honour it was for me to be appointed by the then Secretary-General of the ANC, Cyril Ramaphosa, to convene Theme Commi� ee 4, which was given the responsibility of dra� ing the Bill of Rights.
It was a learning experience for me to navigate and nego� ate sensi� ve issues in a country with our history of human rights, and to engage with former adversaries who had thought black people had no basic human rights.

In hindsight I realise that it was during this period that I learnt diplomacy.

I was mainly responsible for convening the Commi� ee and guiding the discussions.

This taught me that leadership is about responsibility not power.
In addi� on, I learnt how power and inﬂ uence are distributed in a poli� cal process, and diversity is aﬃ rmed within the body poli� c in South Africa.

Lastly, I learnt about the peaceful co-existence of diﬀ erent interests, convic� ons and ideologies.

A few issues were of par� cular signiﬁ cance to me during the dra� ing of the Bill of Rights, and have been brought to my a� en� on again since the adop� on of our Cons� tu� on.

Discrimina� on, especially as it aﬀ ected schools or educa� on ins� tu� ons.
One ma� er that stood out was discrimina� on on the grounds of pregnancy.

This was a sensi� ve ma� er in schools, because it meant pregnant girls could not be barred from a� ending school.

Teachers we met with during the consulta� on period were not in agreement with this, as they felt this would aﬀ ect school discipline and general behaviour.

Cultural diversity and diﬀ erent tradi� ons s� ll aﬀ ect schools where discrimina� on is more pronounced.
It seems that current school governing bodies do not understand the intent of our Bill of Rights, which calls on South Africans to unite in diversity.

When listening recently to debates about hairstyles, I was taken aback by the level of anger expressed by the students because of the a� tude of some of the teachers.

It seems to me that there is a lack of comprehension of the principles of our Bill of Rights in some schools.
It may well be that teachers are not moving with the � mes, or that they are uninten� onally racist, ignorant or simply naive.

South Africa is a country of many cultures and religious beliefs, and this calls for sensi� vity among South Africans, in par� cular teachers.

This debate brought back memories I would have preferred to have forgo� en.

Language is one of those areas in which one is not allowed to discriminate.
This too aﬀ ects schools, especially Model C schools, who s� ll believe that only English and Afrikaans should be spoken in schools.

One would have hoped that teachers would have a� empted to learn other South African languages spoken in the area in which their schools are situated, instead of developing nega� ve a� tudes towards other languages.

I do believe, however, that South Africa was very brave in recognising 11 oﬃ cial languages.
With the excep� on of the Northern Territories of Canada, South Africa is the only country I know of that has enshrined so many languages in its Cons� tu� on.

Sexual orienta� on was one area in our discussions that was very conten� ous.

As an elder of the Presbyterian Church of Southern Africa, a fairly conserva� ve church, this ma� er became very challenging.

However, the ANC principle that each person has the right to choose, guided our approach.
We received numerous presenta� ons in this regard from the lesbian, gay, bisexual and transgender community, which was vibrant and ac� ve.

y t i n u d n a y t i s r e v i d , e c n e r e f f i D TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 9393 93 To me, it was an eye-opener to see how strongly people with an alterna� ve sexual orienta� on feel about what they believe in.

Today I am very proud of my par� cipa� on in this process.
When I look at our brothers and sisters in other African countries, I feel ashamed, especially regarding the manner in which they approach this ma� er of sexual orienta� on.

I believe that they are swimming against the � de, because no one can rob a person of his or her right to choose his or her sexuality.

In conclusion, let me declare that I was not happy with the compromise on educa� on, especially Chapter 29(3).

I am the biggest supporter of public schools.


I believe that public schools should be strengthened.

We need a strong public school system, because public schools are a fundamental element of a democra� c society.

I believe that it is only through public schools that the best educa� onal interests of the children can be served.

In fact, in my view the diverse needs and interests of our people can best be served by the public educa� on system.
I never believed in the priva� sa� on of educa� on, therefore I did not support the clause on private schools contained in the Cons� tu� on.

The majority view prevailed, but I was never convinced and I am s� ll not convinced.

Membathisi Mphumzi Shepherd Mdladlana (left ) and Enver Surty (right).
Photo: With the permission of Hassen Ebrahim 94 Reﬂ ections on the Bill of Rights – Theme Committee 4 DENE SMUTS Born in Bloemfontein, Dene Smuts trained and worked as a journalist before embarking on a poli� cal career that spanned 25 years.
Best known for her contribu� on at CODESA, her work on the Cons� tu� on, and perhaps for her highly publicised stand against censorship as editor of Fair Lady in the 1980s, she is also remembered as one of South Africa’s ﬁ nest legal minds, despite having no formal legal training.

Elected in 1989, Smuts served as shadow minister of Home Aﬀ airs, Telecommunica� ons, and Jus� ce, and was also DP spokesperson at the Truth and Reconcilia� on Commission.
She remains South Africa’s longest-serving female parliamentarian to date, our ﬁ rst female Chief Whip, and above all, a renowned legislator whose clear insight and rigour le� a profound imprint on the founda� onal documents of South Africa’s democracy.

Her memoir, Patriots & parasites, was completed just days before her unexpected death in 2016, at the age of 66.
Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 95 95 23 AN ABRIDGED EXCERPT FROM PATRIOTS & PARASITES: SOUTH AFRICA AND THE STRUGGLE TO EVADE HISTORY Dene Smuts (2016: Quivertree) It was on 15 August, with the 6 September 1989 general elec� on only weeks away, that De Klerk became ac� ng state president a� er Botha had resigned in the face of his Cabinet’s request that he re� re in Wilderness.
The ﬁ rst indica� on that something new was afoot was De Klerk’s unprecedented permission for the peace march in Cape Town on 13 September.

I had just been sworn in as a new MP, and joined the march directly from the Chamber.

An es� mated thirty-ﬁ ve thousand people walked from St George’s Cathedral to the City Hall, whose balcony was decorated with the ANC colours and a United Democra� c Front (UDF) ﬂ ag.
UDF leader Dr Allan Boesak declared: ‘By saying we can march in deﬁ ance of his own law, we’ve got De Klerk to defy also.’1 The truth was a li� le more complicated, but there was no doubt that the State of Emergency’s back had been broken.

On 14 September, F.W.

de Klerk was formally elected state president.

His inaugura� on speech on 20 September was all reform and renewal, but the usual qualiﬁ ca� ons s� ll featured, if more distantly.

No one expected what happened on 2 February 1990.


He had taken his Cabinet into his conﬁ dence late in the day, but the NP MPs were kept in full ignorance.

They must have had great diﬃ culty arranging their facial expressions; I did not look, si� ng in the very back benches of the horseshoe-shaped Chamber built for joint si� ngs of the white, Coloured and Indian Houses of the tricameral Parliament.

Had I looked, though, I would not have seen clearly: I was deeply moved.
The injus� ce that had brought me into poli� cs was going to be addressed in nego� a� ons with all South Africans.

Nothing I heard in Parliament over the next quarter of a century ever matched that thunderbolt of a speech for sheer, calculated courage, for drama, for the intellectual discipline typical of De Klerk – and, of course, for the release of energy that I had not dreamt could come so soon.
Not the joyful speeches of Nelson Mandela, a cross between a rock star and a king, nor the poetry of the philosopher-king Thabo Mbeki a� er the adop� on of the Cons� tu� on in 1996.

Did anyone care that both F.W.

de Klerk and Nelson Mandela had acted undemocra� cally?

Of course not, when the exis� ng order was itself undemocra� c and when each was taking a personal poli� cal risk in ini� a� ng democracy.
But, we were not going to allow the con� nua� on of unchecked presiden� al powers in the new order either.
Would anyone have cared if we knew then what we learnt, later, from Bri� sh ambassador Sir Robin Renwick – that De Klerk had phoned him at midnight on the night before his speech to say, ‘You can tell your prime minister that she will not be disappointed’?2 The answer to that ques� on may be more complicated: when Sampie Terreblanche ﬁ rst told me in 2002 that Thatcher had been instrumental in achieving se� lement in South Africa, he did so ruefully, with a grimace.
But, when De Klerk said, ‘Walk through the open door and take your place at the nego� a� ng table [...] the � me for nego� a� on has arrived,’ it was he 969696 Reﬂ ections on the Bill of Rights – Theme Committee 4 and no one else, who performed ‘a deed that echoed over the world’ which was a mighty message of reconcilia� on of whites with their fellow-South Africans – the descrip� on he gave two years later of the near-70-per-cent ‘yes’ vote in the referendum.
Radio sta� ons played music beﬁ � ng the sheer glory of the moment.

In my cons� tuency, even atheist and agnos� c party members went to church that Sunday.

UCT students, locked in ba� le with the former Minister of Educa� on not long before, spray-painted graﬃ � in praise of the new state president on the footbridges arching over the mountainside freeway that sweeps past the university to the presiden� al residence.
As for me, I was to be part of the nego� a� on process that none of us had thought would arrive so soon – from the ﬁ rst day to the last.

F.W.

de Klerk used the toppling of the Berlin Wall in November 1989 to excellent eﬀ ect in triggering South Africa’s transi� on.

Communism had been dealt a death blow; the jus� ﬁ ca� on for P.W.

Botha’s totalitarian tendencies in response to the Total Onslaught had been rendered obsolete.
The new state president lost no � me in dismantling the Na� onal Security Management System, to normalise the role of the security forces.

He addressed the police in November 1989, telling them to be impar� al and refrain from poli� cal involvement.

He told the South African Defence Force the same thing in March 1990.1 He opposed the annual renewal of the State of Emergency in Cabinet: ‘With respect, the arguments [for renewing the State of Emergency] don’t impress me.
How long will we have a State of Emergency?

As long as we live?’ he told Hermann Giliomee in May 1990.

His commitment to the rule of law was real.

In the minds of some members of the tripar� te alliance, however, the Berlin Wall remained standing.

Twenty years a� er the advent of democracy, Prof. Stephen Ellis wrote: ‘The tripar� te alliance governing South Africa relies heavily on Marxist-Leninist ideas promoted by the SA Communist Party from the 1950s un� l the 1990s.
As a result, although the USSR disappeared in 1991, many of the slogans and strategies of Soviet Communism live on in South Africa through the rhetoric of ac� vists and poli� cians’.

That said, the cons� tu� onal guidelines that the ANC had been developing since 1986 showed a dis� nct movement away from socialism and the mantra of na� onalisa� on in the Freedom Charter – a mixed economy was being considered, consis� ng of a public and a private sector.

There was room for discussion.


Property for personal use and consump� on was to be cons� tu� onally guaranteed, but land reform would provide for the vic� ms of forced removals.

The ANC’s commitment was to individual rights, as opposed to the minority rights or protec� ons that had been raised for discussion, but it recognised linguis� c and cultural diversity.

Race remained the paradigm problem for De Klerk.


He openly stated his lack of resolu� on on individual versus deriva� ves of group rights on 2 February when he said that he wanted the South African Law Commission to do more work on ‘collec� ve units, associa� ons, minori� es and peoples’.
In Nelson Mandela’s version, De Klerk abandoned the formula� on ‘group rights’ as a result of the following conversa� on on 13 December 1989, which took place when the new state president invited Mandela to Tuynhuys: ‘You know,’ he said, ‘my main aim is no diﬀ erent than yours.
Your memo to PW Botha said the ANC and the government should work together to deal with white fears of black domina� on, Reﬂ ections on the Bill of Rights – Theme Committee 4 97 and the idea of group rights is how we propose to deal with it.’ I was impressed with this response, but said that the idea of ‘group rights’ did more to increase black fears than allay white ones.
De Klerk then said, ‘We will have to change it, then.’ As the DP, we had a clear liberal-democra� c cons� tu� onal vision, built on many decades of devoted work by the PFP and its predecessors.

But, the most powerful statement of liberal democra� c values came from the South African Law Commission, which commenced work on the subject of group and human rights in 1986, on Jus� ce Minister Kobie Coetsee’s request.
Coetsee had successfully taken a resolu� on through NP Congresses himself, accep� ng the desirability of looking at a bill of individual human rights alongside the ques� on of group rights.

By 1989, the South African Law Commission (SALC) had published Working Paper 25, which recommended the adop� on of the universal franchise subject to a bill of rights and appended a dra� bill of fundamental individual human rights.
The working paper was known as the Olivier Report a� er its author, Judge Pierre Olivier.

‘Judge Olivier’s report has been described as the most impressive document to emanate from an oﬃ cial body in the past forty years.

My own view is that we could just as easily make that four hundred,’ said Prof. E� enne Mureinik of the University of the Witwatersrand’s School of Law, himself arguably the most gi� ed of all academic cons� tu� onal thinkers.
Judge Olivier’s role in achieving our cons� tu� onal dispensa� on cannot be overstated.
Over and above the luminous quality of his work and the admirable involvement of all South Africans that his invita� ons for comment elicited throughout the life of the SALC’s Project 58, as it was called, his indefa� gable countrywide consulta� ve ac� vi� es – before the Cons� tu� onal Assembly undertook its own public par� cipa� on ini� a� ves – contributed greatly to embedding an understanding of a rights-based cons� tu� onal order.
Olivier was appointed to the Orange Free State Supreme Court in the same year as my father became judge president of that division, and became a close family friend.
He told me more than once, with delight, how recep� ve and sharply well-informed he had found individuals and communi� es – the farming community on the subject of property rights, and a modest pla� eland ci� zen who had surrep� � ously shown him a risqué Afrikaans magazine behind a barn wall and sought Olivier’s conﬁ rma� on that the right to free speech and informa� on meant that he could really, truly, read the magazine.
Media coverage of the Olivier Report extended the audience as far as Robben Island; years later, former poli� cal prisoners who had become elected poli� cians told me that they had cheered my NP colleague Sheila Camerer and me on when we had debated the Olivier Report on TV.
In October 1994, when the SALC’s ﬁ nal report was handed to Jus� ce Minister Dullah Omar, the Commission reiterated its 1989 posi� on that a group or minority is not recognised as a persona iuris in our law and therefore cannot be protected as such in a bill of rights; and that the interests at issue in a bill of rights do not have to be protected as group rights.
All the collec� ve values that could arise in the context of a bill of rights – language, religion, culture – can be protected as individual rights.

Yet, the liberal establishment beyond the DP demonstrated some disarray of its own.

The South African Ins� tute of Race Rela� ons (SAIRR), no less, appeared to have lost the plot.

It thought that a limita� ons clause in the Bill of Rights ‘raised the ques� on whether this document is really a Bill of Rights at all.
Perhaps it is be� er described as a “bill of gi� s” which the state in certain circumstances has the power to take away’.3 The very ques� on showed an embarrassing unfamiliarity with the progression of the liberal cons� tu� ons on which we were building – those of Canada and Germany, especially, as the most recent successors of the American tradi� on – to write a celebrated document.

The SAIRR’s posi� on on discrimina� on between persons caused it to be called informally into the Cons� tu� onal Assembly.
Its new president’s claim that apartheid was not all bad, supported by sta� s� cs on service delivery, further eroded the standing of a once-proud liberal ins� tu� on.

The SAIRR had begun to 98 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 99 sound more NP than DP – and, on the ma� er of groups and culture, more CP than NP.
If I could understand the liberal eﬀ ort before transi� on, I had absolutely no sympathy for the verkrampte campaigns that broke out a� er the gruelling process of nego� a� on was ﬁ nally concluded, with liberal democracy and the ﬁ nal 1996 Cons� tu� on safely in place.

This took two forms.

Firstly, Die Burger and Rapport claimed that F.W.

de Klerk had capitulated.

Clearly, there was a poli� cal plot against him in the works – whatever it was, it came to nothing.
Secondly, the Cape Times ran an endless stream of columns by Hermann Giliomee – SAIRR president – protes� ng that the Cons� tu� on did not accommodate a divided society.

What concerned me about both the newspaper campaigns and Giliomee’s wri� ng was that whites were being ac� vely alienated from the new order.
I was so incensed that I made a speech at Swellendam that featured prominently in Beeld in Johannesburg the next morning, and which led to a public broeder-en-suster-twis between Giliomee and me over many weeks, in many newspapers – in the course of which he called me a verdwaalde and I called him a verdampte.
I accused him of wishing to cast the divided society of what he saw as sub-na� onal groups in cons� tu� onal concrete, a failure of imagina� on when the overarching South African na� on presupposed by democracy was already being born.

But, it was Die Burger that had to be counteracted: it ran an editorial early in 1997 � tled ‘Capitula� on’, a� er F.W.
de Klerk had said in a London speech that ‘the decision to surrender the rights to na� onal sovereignty is certainly one of the most painful that any leaders can ever be asked to make [...] yet this was the decision that we had to take.

We had to accept the necessity of giving up on the ideal on which we had been nurtured and the dream for which so many of our forefathers had struggled and for which so many of our people had died’.
The words were poorly chosen, but he was clearly thinking like the Voortrekkers, who had real jus� ﬁ ca� on for seeking self-government beyond the borders of the Bri� sh Empire, and like a Boer Republican, an allegiance I share.

However, the suppression by a racial minority of a majority was not self-determina� on – it was just that, suppression.
It was not sovereignty – it was oppression with blind disregard for the rights of the people to whom it was denying those same rights, in the name of ﬁ rst Afrikaner and then white sovereignty.
Die Burger complained migh� ly about the alleged failure to achieve, in the ﬁ nal cons� tu� on, a sa� sfactory degree of decentralisa� on and federalism, sa� sfactory safeguards for language and culture, and the absence of a general amnesty for the security forces who were ‘daily being humiliated before a par� san Truth and Reconcilia� on Commission’.

F.W.

de Klerk, Kobie Coetsee and the NP nego� ators had a lot to answer for.
Afrikaans people would now have to rebuild, just as they had done a� er the Anglo-Boer War, it said, and they would have to do it themselves.

‘What has been sacriﬁ ced?’ I asked at Swellendam: Not sovereignty or self-determina� on, but power.

Although inevitable, that is a major sacriﬁ ce and F.W.

de Klerk will always deserve everyone’s admira� on for the skill and style with which he led the old establishment into the new order.
The repression of a majority by a minority is not, however, self-determina� on.

To give up oppression is not capitula� on.

What has been given up?

Injus� ce.

Poor tragic skeletons now being exhumed.

What have we accepted instead?

Equal jus� ce under a jus� ciable Bill of Rights protected by independent courts which will ensure that a new government can never again in the name of race, group rights, sovereignty or self-determina� on lock up, torture and a� erwards burn or bury other people.
The ac� vi� es of P.W.

Botha’s securocracy had begun to surface as a result of our insistence, as MPs wri� ng the law that created the TRC and set its parameters in 1995, that amnesty applica� ons could not be heard behind closed doors, as the en� re Cabinet of the Government of Na� onal Unity wanted.
Reﬂ ections on the Bill of Rights – Theme Committee 4 99 ‘Despite all the historical improbabili� es, a modern, mature and liberal cons� tu� on has been born out of deadlock and se� lement,’ I said at Swellendam: No one took liberal democracy seriously before.

Not the old electorate (ask the DP) and not the libera� on movements.

Yet, here we are.

Capitula� on?

Who gave up what?

I’ll tell you who lost what, and then you decide whether you won or lost.
A small group of once powerful white men [...] confuse their own poli� cal demise with the demise of Afrikanerskap, a poli� cal construct they created.

Because they based their power on the exploita� on of Afrikaans (which is free at last, and ﬂ ourishing) and on Afrikanerskap, they base their new crisis of powerlessness on what they project as the decline of Afrikaner iden� ty under the new order.

The capitula� on dispute dragged on into 1999 and the Na� onal Assembly.
The government tasked Deputy President Thabo Mbeki and Minister of Home Aﬀ airs Mangosuthu Buthelezi to interact directly with Afrikaner people for their views about what Rapport and Die Burger had wri� en in 1997.
In par� cular, the government had noted an asser� on by Die Burger that ‘there are too many areas where Afrikaners have been humiliated, threatened and eventually marginalised’ and Rapport’s view that the government could not aﬀ ord ‘the bi� er dissa� sfac� on of a big and strong minority group’, based on a survey in which 83 per cent of white Afrikaners had registered unhappiness with the treatment of their language and cultural values.4 In addi� on, they took note of a 1998 paper that Giliomee prepared for a seminar, in which he said that De Klerk’s London speech had ‘ripped apart the pretence of power-sharing or indeed the construc� on that the NP, whites in general and Afrikaners in par� cular, had suﬀ ered no major defeat in the transi� on to an inclusive democracy’.
Deputy President Mbeki pointed to the diﬃ culty of knowing who to talk to by quo� ng former Die Vaderland editor Harald Pakendorf: ‘there simply is no organisa� on or poli� cal party that can be said to represent what Afrikaners want.
They are divided, spread out over a whole range [of ] organisa� ons, churches and poli� cal par� es’.5 As for the debate being conducted in the Na� onal Assembly, Pakendorf said it was almost absurd and that he hoped there would never be such a thing again – that Afrikaners were not separate enough from the rest of South Africa to be discussed as such.
Deputy President Mbeki reported to the House that the Afrikaners whom he had met had conﬁ rmed a feeling of marginalisa� on and disempowerment, quo� ng one interlocutor who observed that ‘the Afrikaner is suﬀ ering from the hangover of loss of power’.6 Unfailingly polite and correct at that point, Mbeki oﬀ ered a range of steps to expedite measures enshrined in the 1996 Cons� tu� on – among them, a unit in the Presidency to work with the Pan-South African Language Board on implemen� ng language rights, and expedi� ng the Chapter 9 Commission for the Promo� on and Protec� on of the Rights of Cultural, Religious and Linguis� c Communi� es.
The death ra� le of Afrikaner na� onalism may have helped Mbeki gain support for his own na� onalist endeavours.

For now, in a master stroke, he asked outgoing President Nelson Mandela – thirty minutes before the end of the debate on Afrikaners – to do the reply.

He had the House ea� ng out of his hand in no � me, and said, among other cheerful things, ‘This nega� vism which emerges in every discussion here, is not actually seen out there.
The overwhelming majority of South Africans, black and white, see this rainbow na� on emerging.’ But the high point of that debate was the speech delivered by Geraldine Fraser-Moleke� , Minister of Welfare and Popula� on Development.

She quoted Jan Rabie, who had wri� en at length about the role of the Khoi and the coloured people in the development of Afrikaans.
‘And therefore,’ Fraser-Moleke� said, ‘we are making an appeal today that no group of Afrikaners should feel that they have to hide in a laager, because we are all part of the greater African con� nent.’ 100 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 101 Then she quoted Ruth: U volk is my volk, U God is my God, Waar u sterf, sal ek sterf En daar sal ek begrawe word.
Dene Smuts (left ) and Ken Andrews (right), CODESA Dene Smuts sleeping in Parliament Photos: With the permission of Julia Smuts Louw Colin Eglin (left ) and Dene Smuts (right), both for the DP, watch the debate unfold during negoti ati ons.

Photo: With the permission of Hassen Ebrahim Five Freedoms Forum and Raymond Louw (ed).

(1989).

Four days in Lusaka: Whites in a changing society.

Discussion on models for South Africa’s future cons� tu� onal dispensa� on.

Seth Nthai.

(1998).


A Bill of Rights for South Africa: A historical overview.

Consultus, November 1998.

John Kane-Berman, reprinted from Business Day, in Fronti ers of Freedom, First Quarter 1996, South African Ins� tute of Race Rela� ons.

Quoted in the Report of the Government of the Republic of South Africa on the Ques� on of the Afrikaners, Na� onal Assembly, Cape Town, 24 March 1999.

Ibid.

Ibid.
Ibid.

Ibid.

Reﬂ ections on the Bill of Rights – Theme Committee 4 101 PHILIP KNIGHT is a re� red lawyer from Phil Knight Vancouver, Canada, who has prac� sed interna� onally as a legisla� ve counsel.

From 1995 to 1996, he served as a member of the Technical Team convened by the Cons� tu� onal Assembly to dra� the wording and ﬁ nal texts of the Cons� tu� on.
He has been involved in or acted as advisor on the dra� ing of the cons� tu� ons of Kenya, Somalia, Fiji, Nepal and the Solomon Islands, as well as several aboriginal governments in Canada.

In addi� on, he has worked on many statutes and regula� ons.

For seven years, Mr Knight was an adjunct professor at the University of Bri� sh Columbia, lecturing in aspects of legal dra� ing, and for three years he was editor of Clarity, an interna� onal journal of legal wri� ng.
Together with Prof Halton Cheadle, he developed and for several years delivered a professional cer� ﬁ cate course in legal dra� ing at the UCT Law Department.

For the past 20 years, he has served pro bono as a member of the faculty of the Interna� onal Legisla� ve Dra� ing Ins� tute at the Public Law Centre at the Tulane University in New Orleans.
Mr Knight obtained his LLB at the University of Manitoba and served a judicial clerkship in the Manitoba Court of Appeal before being called to the Manitoba bar in 1983, and subsequently to the Bri� sh Columbia bar in 1994.

He spent a decade as the Execu� ve Director of two public legal educa� on NGOs before commencing his prac� ce as a legisla� ve dra� ing consultant in 1995.
102 Reﬂ ections on the Bill of Rights – Theme Committee 4 24 RHETORIC IS THE ARGUMENT Philip Knight In September 1995, the Cons� tu� onal Assembly’s management commi� ee convened a Technical Team to prepare working dra� s, the ﬁ rst of which would bring together all of the extant formula� ons and proposals.
As Hassen Ebrahim reported, it was to take “into account legal and linguis� c consistency and coherence as well as ensuring that the text was in plain and accessible language … This was the ﬁ rst � me the cons� tu� onal issues were formulated in this way.”1 The call for “plain language”, while apparently unprecedented in cons� tu� on dra� ing, was not surprising, as the language of the Interim Cons� tu� on, and par� cularly its Bill of Rights, had been cri� cised as inaccessible.
In a cri� que of the Interim Cons� tu� on, linguist Ailsa Stewart-Smith wrote as follows: Our emergent democracy needs to discard the inherited imbalance where an elite minority has the knowledge to understand the laws of which they are also the cra� ers, administrators and prac� � oners.

This power diﬀ eren� al has been supported by tradi� onal legal language.
The language used in the interim cons� tu� on is simpler than in previous statutes, but this improvement is neither consistent nor extensive enough.2 Willie Hofmeyr, then an MP, had been promo� ng the concept of plain language as an instrument of legal and social transforma� on for some � me, and had persuaded the then Minister of Jus� ce, Dullah Omar, to host a conference on the topic in March 1995.
In his opening comments, the Minister set out the argument that would jus� fy the call for plain language to be used in the Cons� tu� on: We must create a culture of human rights that gives South Africans both the conﬁ dence and an internalised understanding of their rights and role in society.

It is in the pursuit of this goal that the nature and style of public informa� on becomes so cri� cal.
If we write laws in complicated and diﬃ cult language how can we possibly expect the ci� zens of this country to understand or obey the laws?… Clear, simple, understandable communica� on is a whole lot more than just something we should be dreaming about.

It is an absolute and cri� cal necessity for democracy.
People have a right to understand the laws that govern them, to understand court proceedings in ma� ers that aﬀ ect them, to understand what government is doing in their name.3 In the same month in which the Cons� tu� onal Assembly established its dra� ing team, the Na� onal Assembly had given a ﬁ rst reading to the Labour Rela� ons Act 1995, the ﬁ rst piece of legisla� on that was overtly prepared in the style advocated in plain language literature.
Prof Halton Cheadle, the principal policy architect and head of the team that dra� ed the Act, had championed the use of that style in response to a direc� ve from the then Minister of Labour, Tito Mboweni, requiring the following: The Labour Rela� ons Bill is to be simple and wherever possible, wri� en in language that the users of the legisla� on, namely workers and employers, can understand, and provide procedures that workers and employers are able to use themselves.4 t n e m u g r a e h t s i c i r o t e h R TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 103103 103 Apparently, many MPs approved of the style.
As a result, Prof Cheadle, in his later capacity as a member of the Bill of Rights Technical Commi� ee, insisted on emula� ng the style in the commi� ee’s prepara� on of the ﬁ rst dra� of the Bill of Rights.

I was invited to explain the relevant dra� ing issues and principles to the core cons� tu� onal commi� ee.

Not everyone was impressed.

Nevertheless, the decision was made to employ plain language, and the management commi� ee stood by it.
The resul� ng 1996 Cons� tu� on is o� en held up as exemplifying that style.

University of Pretoria Prof Frans Viljoen agrees: Following the fall of the Berlin wall in 1989, a number of countries, including South Africa, underwent a process of democra� za� on.

In many instances this process resulted in the redra� ing of old or the dra� ing of new cons� tu� ons.
In none of these countries has the impact of the plain language movement on the cons� tu� on dra� ing process been as visible as in the case of the South African cons� tu� on.5 Haysom notes: “Although the ‘plain language’ advocates had their detractors, the eventual product contributed to a cons� tu� on which is in general more accessible than most.”6 Cons� tu� onal Court Jus� ce Johan van der Westhuizen, who in 1996 was a member of the dra� ing team, agreed with that assessment: “[G]enerally I believe that the a� empt was worth it.
And, in spite of predic� ons, I’m not aware of serious confusion among judges or anyone else because of the language used in the Cons� tu� on.”7 The call for plain language is best understood as expressing a desire for a document that is a model of simple, clear style – though there is li� le agreement about what those terms signify, how they might be measured, or indeed, what techniques might best produce them.
When the cons� tu� onal dra� er is called upon to produce a text that exudes style, what is really meant is that a par� cular, consciously selected style, executed consistently and with professional skill and grace, is desired.

There are diﬀ erent views as to what that style ought to be, some stakeholders arguing for a majes� c, or even poe� c, style, something beﬁ � ng the historical signiﬁ cance of the text.
Bryan Garner, whose general counsel is to “be direct, simple, lucid, and brief”, also calls for the dra� er to develop a good ear, and become sensi� ve to cadence: Prose writers are seldom as sensi� ve to rhythm as poets, no doubt because rhythm is less crucial in prose.

But it is not unimportant.

Rhythm makes the diﬀ erence between clumsy, monotonous wri� ng and graceful wri� ng that shows logic.
Masterly wri� ng suggests inevitability: a sense that each word must follow the one that precedes it and that no other placement of sentences and paragraphs would have worked so well.8 Beyond that, Castle and Bu� suggest: [L]egal documents should be wri� en in modern standard English – that is standard English as currently used and understood.

... Its hallmark is a style that is direct, informa� ve and readable ... more is required than simply a process of transla� on.
While merely upda� ng terminology will help, a well-drawn document goes further.

It takes into account ma� ers of structure, layout, word order and design.9 Simplicity, precision, and clarity are very much the “holy trinity” of plain language advocacy.

Those are certainly desirable quali� es of a cons� tu� onal text, but they should not be allowed to dictate par� cular stylis� c forms or instruments.
We err if we mistake instruments for 104 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 105 purpose, as we would do if we elevate par� cular desirable quali� es of the wri� ng to the level of becoming the dra� er’s objec� ve in cra� ing the text.

When dra� ing a cons� tu� on (or any other legal text) the objec� ve is to bring some certainty and predictability to the lives of those who will be aﬀ ected by the text.
The cons� tu� onal dra� er should aim to give eﬀ ect to the inten� ons of the nego� ators, and to state those inten� ons so clearly that the readers of the cons� tu� on will know their rights, obliga� ons, and legal posi� on as they pursue their interests, livelihoods, hopes and aspira� ons.

That objec� ve is a� ainable, but it requires much more than simply reproducing a par� cular form, following speciﬁ c guidelines, or improving readability.
Ul� mately, all cons� tu� onal meaning rests on accep� ng the legi� macy of a cons� tu� on’s claim to supremacy.

While it is a simple thing for a cons� tu� on to proclaim its own supremacy, readers must be convinced of its authority if they are to invest that claim with moral, poli� cal and legal force; to be eﬀ ec� ve, the cons� tu� on must be perceived to be legi� mate.

There are several means by which the dra� er can achieve this.
Some� mes, the objec� ve ability is indeed best served by majes� c or poe� c text, making rhetoric both the argument itself and the means of advancing the argument to its conclusion.

Grand statements, which o� en appear in preambles or purpose clauses, advance the cause of legi� macy: speaking both literally and symbolically, they transcend the rupture in the con� nuity of the state, evoking the society’s earlier shared reality, whether of values, iden� ty or experience.

But this can easily be overdone.


Karl Llewellyn writes “adornment is best when it can be made to serve func� on, and bad when it interferes with func� on ... the measure of its beauty is the measure of its sweetness of eﬀ ect”.10 Recognising the importance of symbolic rhetoric, a number of Theme Commi� ees, including the Bill of Rights Commi� ee, wished to insert a preamble dis� nct from the general Preamble of the Cons� tu� on for each of their respec� ve chapters.
While the technical commi� ee understood the mo� va� on, they felt that repe� � ous preambles would prove distrac� ng, and could detract from coherence and clarity.

However, because of the unique nature of the Bill of Rights within the Cons� tu� on, it alone would have the brief introductory provision, employing symbolic language, found in Sec� on 7(1).

All legisla� ve pronouncements – even cons� tu� onal statements of rights – must be applied by real people going about their busy lives.
They have be� er things to do than puzzle through arcane language and pursue tedious legal procedures.

So the dra� er must keep each statement as simple in its design as the circumstances allow, and should avoid statements that are overly complicated or fussy.

But more than that is required.

To achieve its objec� ve, dra� ing requires coherence and consistency and must deliver certainty.

To achieve coherence, the text as a whole has to ﬁ t properly into its legal, poli� cal, social and economic context.
Its various provisions must ﬁ t together properly, and must reﬂ ect the purposes and values that formed the impulse or ra� onale for the cons� tu� on.

The speciﬁ c legal or poli� cal oﬃ ces, ins� tu� ons, instruments and processes established by a cons� tu� on should reﬂ ect and be appropriate to the values embodied within that cons� tu� on.

Finally, the words, sentences and language expressing the law should be a holis� c literary expression of those same values.
The means by which rights are expressed, inﬂ uences the reader’s awareness of those rights.

The linguis� c style of the Bill of Rights reﬂ ects this – the language itself has been designed to reinforce the substan� ve content by reﬂ ec� ng the underlying values, with the clear intent of delivering a message about social transforma� on.

For example, consider the right to dignity, which was essen� al to the ethos of the en� re Bill of Rights.
To assert an inherent right of dignity in every individual, it was cri� cally important Reﬂ ections on the Bill of Rights – Theme Committee 4 105 to express that right in words which themselves show a decent respect for the dignity of the individuals to whom, for whom and about whom the right was asserted.

Certainty is achieved when it is apparent how par� cular cons� tu� onal provisions are to apply to a par� cular set of circumstances when they arise.
For all the simplicity of that statement, it certainty is the most diﬃ cult dra� ing quality to realise.

There are several reasons for this.

First, rights are general statements, and the dra� er has nothing to employ but words, which can express no more than approxima� ons of reality.
Many words have more than one ordinary meaning, and the meaning that will be judicially assigned to a word in a cons� tu� on is that meaning, ordinary or otherwise, that is best supported by the context in which the word appears.

Context is mul� dimensional, and the ques� on of which of the compe� ng elements of context in a par� cular case should frame the issue, and thus determine the meaning to be speciﬁ ed, is a highly subjec� ve ma� er.
This is con� nually demonstrated in the arguments at the centre of all cons� tu� onal li� ga� on.

Every rule reﬂ ects a balancing of the compe� ng impulses to produce both certainty and ﬂ exibility.

In a bill of rights, enhanced certainty for the ci� zen tends to reduce the ﬂ exibility aﬀ orded to the State, and vice versa.
But even that oversimpliﬁ es the dynamic: because life is inherently ambiguous and uncertain, very few people will ever approach a par� cular provision desiring absolute certainty or absolute ﬂ exibility.

And within the society governed by a cons� tu� on, there exists an impossibly large mixture of preferences as to how the balance should be struck in any given case on any given day, much less for all � me and in all cases.
Furthermore, users of a cons� tu� onal text are predictably ambivalent about claiming that uncertainty exists in the text.

Those sa� sﬁ ed with the status quo interpreta� on or applica� on of a provision will tend to deny that any uncertainty exists, while those seeking a change will advocate both for the recogni� on of an ambiguity and for an alterna� ve, more favourable, interpreta� on.
And, when we talk about “the users” and “the readers” of a cons� tu� on, we have to remember that they are not singular, but legion.

Yash Ghai comments: I have talked throughout about “the people”.

But we have to disaggregate the concept of the people.

There is no such thing as “the people”.

There are doctors and lawyers, engineers, den� sts, Chris� ans, Muslims, Hindus, people from the northern part, people from the south, women, youth, disabled, dalits, ethnic groups, farmers, workers, and so on.
Each group has its own interest, its own moral perspec� ve and views.11 Second, cons� tu� ons project their words into an uncertain future, of uncertain dura� on, to be interpreted and applied within a speciﬁ c factual context.

The presently unforeseeable circumstances of such a context will frame our future percep� on of the text, focusing on a par� cular aspect, perspec� ve and nuance, and thus informing our conclusions about its meaning at that � me.
Words that seemed certain when the dra� er penned them tend to acquire unclear connota� ons when viewed later in an unforeseen se� ng.

The colloquial meaning of words is constantly evolving and shi� ing, giving en� rely new connota� ons to things wri� en decades ago.

Circumstances arise that were unimaginable when a cons� tu� on was adopted, requiring provisions to be applied beyond their original intent, simultaneously stretching and extending the meaning of the original words.
Social structures, values and opinions shi� over � me, bringing what once may have been the uncontested clear, plain meaning of a provision into focus as the “ambiguous” object of emerging poli� cal contests.
106 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4 107 The least certain of all con� ngencies is the balance that the na� on will strike between jurispruden� al interpreta� on and poli� cal construc� on of the Cons� tu� on, as diﬀ eren� ated by Whi� ngton.12 Uncertainty expands to the extent that the na� on aﬀ ords opportuni� es for the exercise of a poli� cal model of construc� on, because there are no clear doctrines comparable to jurispruden� al rules of interpreta� on restraining the use of that instrument, and no way to predict what clauses of the text might lend themselves to be exploited in pursuit of such claims, or what poli� cal choices may be asserted and permi� ed to take hold and become deﬁ ni� ve of the meaning of the cons� tu� onal text.
All of this mo� vated the Technical Team, who recognised that the quali� es of coherence, consistency and certainty were not mere ma� ers of form and could not be realised by applying a par� cular form or method of dra� ing to the exclusion of any other.

They required clarity of thought just as much as clarity of expression.

Success in responding to the request for a clear, well-styled Cons� tu� on required rigorous logic throughout the process, from ﬁ rst principles to ﬁ nal provisions.
To express an idea clearly within the Cons� tu� on required ﬁ rst comprehending the idea itself, as well as its place in the universe of cons� tu� onal ideas.

To successfully fulﬁ l the mandate assigned to them, the Technical Team had to synthesise the ideas and issues as they were debated and resolved, and then express them with a decent degree of clarity and certainty, while understanding the limita� ons of any wri� en text as an expression of legal norms.
A legal document is not dra� ed, nor does it exist, in a vacuum.

Whatever the speciﬁ c nature or purpose of the text – even of a cons� tu� on – it must operate within the general legal and linguis� c culture, and it derives its meaning from the fabric of the legal principles and expecta� ons that form and deﬁ ne that culture.
To the extent that we succeeded, it was only by internalising the truth recognised by Alberto Manguel: The rela� onship between a civiliza� on and its language is symbio� c: a certain kind of society gives rise to a certain kind of language; in turn, that language dictates the stories that inspire, mould, and later transmit the society’s imagina� on and thought.13 (Extracted, with revisions, from an earlier monograph, Draft ing, actually: thoughts on the art of consti tuti onal draft ing) Hassen Ebrahim, The Soul of a Nati on: Consti tuti on Making in South Africa (1998) at 193.
Ailsa Stewart-Smith, The Legislated Double Bluﬀ : How democrati c rights are undermined by the language of the new consti tuti on in South Africa (1996) 34 Clarity 14.

Dullah Omar, Plain Language the Law and the Right to Informati on (1995) 33 Clarity 11.

Amanda Armstrong, Some concise guidelines to the process of dra� ing the new Labour Rela� ons Act in plain language, in Viljoen and Nienaber, editors, Plain Language for a New Democracy (2001) 71.
Frans Viljoen, Baring the Nati on’s Soul Through Plain Language (2001) 46 Clarity 15.

Nicholas Haysom, Nego� a� ng a Sustainable Poli� cal Se� lement: Lesson from the South African Transi� on, in Hari Bha� arai & Jalek Sabedi, Democra� c Cons� tu� on Making: Experiences from Nepal, Kenya, South Africa, Sri Lanka (2007) 115.

Johan van der Westhuizen, Plain Language in the Dra� ing of the 1996 Cons� tu� on, in Viljoen and Nienaber, editors, Plain Language for a New Democracy (2001) 61.
Bryan Garner, An Approach to Legal Style (1991) 2 Scribes Journal of Legal Writi ng 1 at 21.

Peter Bu� and Richard Castle, Modern Legal Draft ing: A Guide to Using Clearer Language (2001) 129.

8 9 10 Quoted in Richard Weisberg, Poethics and other Strategies of Law & Literature (1992) 14.

11 Yash Ghai, People Take Lead: Parti cipatory Process of Consti tuti on Making in Kenya, in Hari Bhatt arai & Jhalak.
Subedi, Democrati c Consti tuti on Making: Experiences from Nepal, Kenya, South Africa, Sri Lanka (2007) 119 at 127.

12 Keith Whi� ngton, Consti tuti onal Constructi on: Divided Powers and Consti tuti onal Meaning (1999) 5.

13 Alberto Manguel, The City of Words (2007) 63.

Reﬂ ections on the Bill of Rights – Theme Committee 4 107 KENNETH RASELABE JOSEPH MESHOE Kenneth Meshoe was born in Pretoria and is the fourth of seven children.

He completed his matric in 1972.


In 1975 he obtained a Secondary Teachers’ Diploma from the University of the North.

In 1976 he married his wife, Lydia, and they are blessed with three children, Olga, Esther and Joshua.

He brieﬂ y taught at GH Franz Secondary School in Bochum, Pietersburg in 1976 before joining an evangelis� c organisa� on called Christ for all Na� ons.
In 1983, Kenneth went to Shekinah Bible Ins� tute in Kingsport, Tennessee in the USA, where he did the ﬁ rst year of his Diploma in Theology.

He returned to Kingsport in January 1987 to complete his diploma.

In December 1993, Kenneth and his friends started a poli� cal party based on biblical principles called the African Chris� an its ﬁ rst Democra� c Party (ACDP), and Kenneth became President.
He became an MP represen� ng the ACDP a� er the ﬁ rst democra� c elec� ons in 1994 and s� ll serves in that capacity.

On 18 December 1994, Kenneth Meshoe was awarded an Honourary Doctorate, Doctor of Human Le� ers, abbreviated to LHD, by Bethel Chris� an College in Riverside, California, USA, and was also appointed to serve as an associate member on the Board of Regents of Bethel College.
In 1998, Kenneth was awarded the Interna� onal Leadership Award for outstanding leadership in the church and the na� on by the Australian Federa� on of Fes� val of Light Community Standards Organisa� on at the New South Wales Parliament House in Australia.

Kenneth was awarded a second Honorary Doctorate, Doctor of Human Le� ers (LHD) on 5 July 2007 by Logos Graduate School in Jacksonville, Florida, USA.
In 2008, Kenneth Meshoe completed his Advanced Diploma in Economic Policy (ADEP) at the University of the Western Cape.

108 Reﬂ ections on the Bill of Rights – Theme Committee 4 25 HUMAN RIGHTS IN SOUTH AFRICA Kenneth Meshoe The African Chris� an Democra� c Party (ACDP) was privileged to be one of the poli� cal par� es that par� cipated in the dra� ing of the South African Cons� tu� on.
We argued, among other things, for the inclusion of freedom of religion, belief, conscience and opinion in the Bill of Rights.

These were all granted.

This clause helped to promote cultural and religious diversity in our society that made tolerance and acceptance of all faiths to be the norm.
Even though the ACDP was the only poli� cal party that voted against the Cons� tu� on because of some provisions in it that oﬀ ended our religious beliefs, once adopted, we accepted it as supreme over all other laws in the land.
To support and anchor the religious rights in the Bill of Rights, the dra� ers of the Cons� tu� on saw it prudent to include the Commission for the Promo� on and Protec� on of the Rights of Cultural, Religious and Linguis� c Communi� es among Chapter 9 State Ins� tu� ons, to strengthen and support our cons� tu� onal democracy in the Republic.
These Chapter 9 Ins� tu� ons are independent and subject only to the Cons� tu� on and the law, and they must be impar� al and must exercise their powers and perform their func� ons without fear, favour or prejudice.

These ins� tu� ons are accountable to the Na� onal Assembly, and must report on their ac� vi� es and the performance of their func� ons to the Assembly at least once a year.
Controversial media reports about some “pastors” who allegedly abused their members by calling on them to do unacceptable things such as making them drink petrol, eat grass and selling commodi� es such as the so called “holy water” and “holy oil”, sparked an outcry in society.

In response, the CRL Commission decided to undertake an inves� ga� ve study to, among other things, “inves� gate and understand further issues surrounding the commercialisa� on of religion and tradi� onal healing”.
The Commission released a report on “Commercialisa� on of Religion” on its website on Wednesday, 26 October 2016.

In their report, the Commission recommended that Parliament pass an act to regulate churches and other religious organisa� ons.

Some of the concerns from Chris� an organisa� ons and churches, who have scru� nised the Commission’s report, include the following: • Parliament should enact a law that will deﬁ ne how religion will work and how religious organisa� ons will/will not operate.
• State will have the ul� mate authority to deﬁ ne a recognised “religion”.

• Deﬁ ne and authorise “places of worship”.


a c i r f A h t u o S n i s t h g i r n a m u H TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION Reﬂ ections on the Bill of Rights – Theme Committee 4 109109 109 The ACDP is ready to engage Parliament on the proposed legisla� on as we believe it will infringe on Cons� tu� onal rights of freedom of religion, freedom of conscience and freedom of assembly, among other freedoms guaranteed in the Bill of Rights.
We further believe that the proposed legisla� on will give the State ul� mate authority over all religious organisa� ons and prac� ces.

The ACDP believes the solu� on to the illegal prac� ces and the abuse of vulnerable people in religious organisa� ons is for government to enforce exis� ng laws and regula� ons that are being violated by some leaders in society.
110 Reﬂ ections on the Bill of Rights – Theme Committee 4 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 111 THEME COMMITTEE 4: CHAIRPERSONS: AJ Leon (DP) MMS Mdladlana (ANC) GB Myburgh (NP) MEMBERS: K Asmal D Bakker IM Cachalia S Camerer J Chalmers M Coleman BO Dlamini G Ebrahim (alt) SLE Fenyane T Gamndana XF Gasa (alt) D Govender P Govender (alt) JL Kgoali EN Lubidla (alt) BS Mabandla TGG Mashamba MG Masher (alt) P Mathebe LR Mbuyazi (alt) KR Meshoe (alt) SB Mfayela (alt) MW Mfebe (alt) MA Mncwango IJ Mohamed (alt) RS Molekane CP Mulder YL Myakayka-Manzini MAA Njobe (alt) MIB Ntuli GNM Pandor MM Phenethi (alt) MM Piliso RJ Radue SM Rasmeni B Ranchod RT Rhoda E Saloojee RK Sizani BM Skosana D Smuts (alt) G Solomon JE Sosibo ME Surty E Thabethe B Thompson TJ Tshivhase VM Tyobeka V Viljoen SC Vos CH Werth (alt) LM Xingwana (alt) TECHNICAL COMMITTEE: H Cheadle J Dugard S Liebenberg I Rautenbach STAFF: John Tsalamandris, Managing Secretary Zuleiga Adams, Minute Secretary Pamela Crowley, Administra� ve Secretary Reﬂ ections on the Bill of Rights – Theme Committee 4 TWENTY YEARS SINCE THE BIRTH OF OUR CONSTITUTION 111 111 The Consti tuti onal Assembly gathered on the steps of the Senate building, Cape Town.
Photo: With the permission of Hassen Ebrahim CHAPTER 2 BILL OF RIGHTS Rights 7.

(1) This Bill of Rights is a cornerstone of democracy in South Africa.

It enshrines the rights of all people in our country and aﬃ rms the democrati c values of human dignity, equality and freedom.

(2) The state must respect, protect, promote and fulﬁ l the rights in the Bill of Rights.

(3) The rights in the Bill of Rights are subject to the limitati ons contained or referred to in Secti on 36, or elsewhere in the Bill.
112 112 Reﬂ ections on the Bill of Rights – Theme Committee 4 Reﬂ ections on the Bill of Rights – Theme Committee 4